Assignments and Participations Sample Clauses: 6k Samples

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 3 contracts

Sources: Credit Agreement (Daegis Inc.), Credit Agreement (Daegis Inc.), Credit Agreement (Unify Corp)

Assignments and Participations. Lender may sell or offer to sell the Loan or interests therein to one or more assignees or participants (~~a) Any Lender may~~“Lender’s Sale Right”). Provided no Default then exists beyond any applicable cure period, ~~with~~ Lender’s Sale Right shall be subject to the ~~prior written~~ consent of ~~Agent~~the Borrower, which consent ~~of Agent~~ shall not be unreasonably withheld, ~~delayed~~conditioned, or ~~conditioned, and so long as no Event of Default exists, with~~ delayed (“Borrower’s Sale Approval”). Notwithstanding the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until preceding sentence (i) ~~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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination execution of this Agreement, ~~including such assigning~~ Borrower consents to the Lender’s ~~obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance,~~ sale of interests in the ~~assigning Lender thereunder and the Assignee thereunder confirm~~ Loan 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate two participants at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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 closing 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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~~ assignees or ~~sale~~ participants of the Lender (“Lender’s Assignee”) shall not be subject to the Borrower’s Sale Approval. If the Borrower shall execute, acknowledge and deliver any and all ~~or part of such Registered Loan (~~instruments reasonably requested by Lender in connection therewith, and to the ~~registered note~~extent, if any, ~~evidencing the same) may be effected only by registration of~~ specified in any such assignment or ~~sale on the Register~~participation, ~~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~~participant(s) shall have the same rights and benefits with respect to the Loan Documents as such Person(s) would have if such Person(s) were Lender hereunder; provided, that none of the foregoing shall decrease any rights or increase any obligations of Borrower or Guarantor under the Loan Documents other than to a de minimis extent. Lender may disseminate any information it now has or hereafter obtains pertaining to the Loan, including any security for the Loan, any credit or other information on the Property (including environmental reports and assessments), ~~one~~ Borrower, any of Borrower’s principals or ~~more new registered notes~~ any Guarantor, to any actual or prospective assignee or participant, to Lender’s affiliates, to any regulatory body having jurisdiction over Lender, to any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Borrower and the Loan, provided such persons shall be notified of the confidential nature of such information. Borrower shall not be responsible for any Costs incurred by Lender in connection with any transfer (via assignment or participation) of its interest 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), 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 Term Loans 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 RegisterLoan. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 3 contracts

Sources: Term Loan Agreement (Jernigan Capital, Inc.), Term Loan Agreement (Jernigan Capital, Inc.), Term Loan Agreement (Jernigan Capital, Inc.)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the ~~prior written~~ consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower,~~ Borrower (which consent of Borrower shall not be (x) required if (i) a Payment Default or an Insolvency Default has occurred and is continuing or (ii) any other Event of Default has occurred and has been continuing for a period of at least 30 days, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender), any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the ~~Commitments~~ Revolver Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender~~ Lender’s Revolver Commitment or ~~(y) a group~~ amount of ~~new Lenders~~Loans, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the consent of Borrower shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning ~~Lender~~ ▇▇▇▇▇▇ (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article X and Section ~~17.9(a)~~11.10 of this Agreement. No assignee shall be entitled to the benefits of Section 10.11 unless the Borrower is notified of the assignment and such Assignee has complied with the requirements of Section 10.11. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above, 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 or the Loans arising therefrom. The Revolver Commitment and the Loans allocated to each Assignee shall reduce such Revolver Commitments or Loans of the assigning Lender pro tanto. (e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other institutional Persons not Affiliates of such Lender and who are not Direct Competitors (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, its Loans, the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 Loans, 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. A Participant shall not be entitled to receive any greater payment under Section 10.11 than the applicable Originating Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a change in Law that occurs after the Participant acquired the applicable participation. A Participant shall not be entitled to the benefits of Section 10.11 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower and Agent, to comply with Section 10.11 as though it were a Lender. (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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~11.10, disclose all documents and information which it now or hereafter may have relating to Borrower 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 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. (h) ~~Agent (~~Each Lender hereby represents and warrants to Borrower that, 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 one or both of the ~~Term Loans~~ Closing Date (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 each 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 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), 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 Term Loans 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 Lender sells participations in the Registered Loan, such LenderAssignee, 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~~ date that such ~~Registered Loans that~~ Person becomes a Lender), it is subject to such participations) (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 Registera Qualified Purchaser. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 3 contracts

Sources: Credit Agreement (Ares Commercial Real Estate Corp), Credit Agreement (Ares Commercial Real Estate Corp), Credit Agreement (Ares Commercial Real Estate Corp)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section ~~13.1(b~~14.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 16 and Section ~~17.9(a)~~17.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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~~14.1(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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.7, disclose all documents and information which it now or hereafter may have relating to Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 3 contracts

Sources: Loan and Security Agreement (Hercules Capital, Inc.), Loan and Security Agreement (Hercules Technology Growth Capital Inc), Loan and Security Agreement (Hercules Technology Growth Capital Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”; provided, ~~however,~~ that ~~no Loan Party or Affiliate~~ neither Borrower nor any of ~~a Loan Party~~ its Affiliates shall be permitted to become an Assignee) ~~all~~ that are Eligible Transferees all, or any ~~portion~~ ratable part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum ~~amount (unless waived by Agent)~~ amount, so long as no Event of Default has occurred and is continuing, of $~~5,000,000~~ 2,500,000 and any amounts in excess thereof in increments of $1,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender or (y) a group of new Lenders~~Lender’s Revolver Commitment, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, ~~however~~that (A) so long as an Event of Default has not occurred and is not continuing, ~~that Borrower~~ no Lender shall assign any portion of its Revolver Commitment without Administrative Borrower’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) and (B) the Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to the Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to the Administrative Borrower and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b),~~ delivered by each party thereto and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to the Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan ~~Documents,~~ Documents and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between the Borrowers and the Assignee; provided~~, however~~, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 10 and Section ~~17.9(a)~~12.1 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental ~~thereto,~~ thereto and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above, 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 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 not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided, that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided~~, however~~, 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) ~~Borrower~~the 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~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or premiums ~~payable to such Participant through such Lender,~~ and (v) all amounts payable by ~~Borrower~~ the 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, ~~Borrower~~the Borrowers, the ~~Collections~~ collections of ~~Borrower~~ the Borrowers or its Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~12.11, disclose all documents and information which it now or hereafter may have relating to any Borrower 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 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. (h) ~~Agent (~~The Agent, acting solely for this purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ the Borrowers, shall ~~maintain, or cause~~ maintain a copy of each Assignment and Acceptance delivered to ~~be maintained,~~ it and a register for the recordation of the names and addresses of the Lenders, and the Revolver 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”~~) on which it enters~~ ). The entries in the ~~name and address of each Lender as the registered owner of one or both of the Term Loans (~~Register shall be conclusive absent manifest error, and the ~~principal amount thereof and stated interest thereon) held by such Lender (each~~Borrowers, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of each Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (the Agent 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 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), Borrower Lenders shall treat ~~the~~ each 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 Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the ~~Register,~~ Register pursuant to the ~~assigning~~ terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers and any Lender, on behalf of Borrower, 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 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 (at any reasonable time 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time ~~as Borrower may reasonably request~~upon reasonable prior notice.

Appears in 3 contracts

Sources: Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.), Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.), Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the ~~prior written~~ consent of ~~Agent,~~ Administrative Entity (which consent of ~~Agent~~ Administrative Entity shall not be (x) required if an Event of Default has occurred and is continuing, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender), any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the ~~Commitments~~ Revolver Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender~~ Lender’s Revolver Commitment or ~~(y) a group~~ amount of ~~new Lenders~~Loans, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information including any documentation required pursuant to Section 2.23(e), (f) and (g) with respect to the Assignee, have been given to ~~Borrower~~ Administrative Entity and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to ~~Borrower~~ Administrative Entity and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee and the consent of Administrative Entity shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section ~~15 and Section 17.9(a)~~8.2(b) of this Agreement relating to any period prior to the effectiveness of such assignment. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above, 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 or the Loans arising therefrom. The Revolver Commitment and the Loans allocated to each Assignee shall reduce such Revolver Commitments or Loans of the assigning Lender pro tanto. (ed) 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 ~~all or any portion of~~ its Obligations, its Loans, the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Loans, 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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 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, Borrower, ~~the Collections of Borrower or~~ its Subsidiaries~~, 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. 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 Revolver Commitments or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. (fe) 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~11.11, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses. (gf) 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 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~~203.24 or any other central bank having jurisdiction over such Lender, and such Federal Reserve Bank or other central bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 3 contracts

Sources: Amendment No. 6 (Ares Management Lp), Amendment No. 5 (Ares Management Lp), Amendment No. 4 (Ares Management Lp)

Assignments and Participations. (a) Any Lender may, after consultation with the ~~prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of~~ Administrative Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an "Assignee") that are Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Loan Parties, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s 's obligations under Section 15 and Section ~~17.9(a)~~18.9(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Loan Parties or the performance or observance by ~~Borrower~~ Loan Parties of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s '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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “"Lender” " for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “"Lender” " hereunder or under the other Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~Loan Parties, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ Loan Parties 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, ~~Borrower~~Loan Parties, the Collections of ~~Borrower~~ Loan Parties or ~~its~~ their Subsidiaries, 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. The provisions of this Section 13.1(e) are solely for the benefit of the Lender Group and Loan Parties shall not have any rights as third party beneficiaries of any such provisions. (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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~18.9, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Loan Parties and ~~its~~ their 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 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~~Applicable Law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (Take Two Interactive Software Inc), Credit Agreement (Take Two Interactive Software Inc)

Assignments and Participations. (a) Any Lender may, in the ordinary course of its commercial banking or finance business and in accordance with ~~the prior written consent of Agent~~applicable law, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, at any ~~Lender may assign and delegate~~ time sell to one or more ~~assignees so long as such prospective assignee is an Eligible Transferee~~ banks or other financial institutions (~~each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee~~"PARTICIPANTS") participating interests in all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations under this Agreement or any other Loan Document (including all or a part of its Revolving Credit Advances, its Letter of Credit Obligations, its Revolving Credit Commitment and its Revolving Credit Note). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender ~~hereunder~~ shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such obligations for all purposes under this Agreement and ~~under~~ the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that and Borrower and Agent ~~may~~ shall continue to deal solely and directly with such Lender in connection with ~~the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 . Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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~~ or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant ~~shall~~ shall, to the maximum extent permitted by applicable law, be deemed to have the right of ~~set off~~ setoff 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~~ , PROVIDED that, in purchasing such participating interest, such Participant ~~only~~ shall be ~~derivative through~~ deemed to have agreed to share with the ~~Originating~~ Lenders the proceeds thereof as provided in SECTION 1.12(b) as fully as if it were a Lender hereunder. Borrower also agrees that each Participant shall be entitled to the benefits of SECTIONS 1.17, 1.19 and 1.20 with ~~whom~~ respect to its participation in the Revolving Credit Commitments and the Revolving Credit Loan outstanding from time to time as if it was a Lender; PROVIDED that, in the case of SECTION 1.17, such Participant ~~participates~~ shall have complied with the requirements of said Section; and PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Notwithstanding anything to the contrary contained herein, no Lender shall grant any participation under which the Participant shall have rights ~~under~~ to approve any amendment to or waiver of this Agreement or the other Loan Documents, except to the extent such amendment or waiver would (i) extend the final maturity date for payment of any of the Obligations in which such Participant is participating; (ii) reduce the interest rate or the amount of principal or Fees applicable to the Revolving Credit Advances in which such Participant is participating; or (iii) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which a Lender grants rights to its Participants to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in the foregoing clauses (i) through (iii), the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of the participating Lender's portion of the Obligations (irrespective of whether held by such Lender or such Participant) shall control the vote for all of such Lender's portion of the Revolving Credit Loan. (b) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~direct~~ affiliate thereof or, with the consent of Agent (which shall not be unreasonably withheld), to an additional bank or financial institution ("an ASSIGNEE") all or any part of its rights as and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of EXHIBIT G, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by Agent) and delivered to Agent for its acceptance and recording in the Register, PROVIDED that (i) in the case of any such assignment to an additional bank or financial institution, any such partial assignment shall be in multiples of at least $5,000,000; (ii) the assigning Lender shall either have assigned all of its rights and obligations under this Agreement or retained at least $5,000,000 of the Revolving Credit Commitment; (iii) each such assignment shall be of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall cover the same percentage of the assigning Lender's Revolving Credit Advances, Revolving Credit Commitment and Letter of Credit Obligations; and (iv) the Assignee shall be a financial institution (including a finance Subsidiary of a Person that is not a financial institution) or an institutional investor including any insurance company, pension fund or mutual fund which has an investment grade long term unsecured debt rating. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (A) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment as set forth therein, and (B) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). (c) Agent, on behalf of the Borrower, shall maintain at the address of Agent referred to in SECTION 11.9 a copy of each Assignment and Acceptance delivered to it and a register (the "REGISTER") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitments of, and principal amounts of the Revolving Credit Advances owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of a Revolving Credit Advance or other ~~Lenders~~Obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. The Register shall be available for inspection by 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 (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by Agent) together with payment to Agent of a registration and processing fee of $3,500, Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and Borrower. On or prior to such effective date, Borrower, at its own expense, shall execute and deliver to Agent (in exchange for the ~~Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect~~ Revolving Credit Note of the ~~Obligations~~assigning Lender) a new Revolving Credit Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment retained by it hereunder. ~~No Participant~~ Such new Revolving Credit Notes shall ~~have~~ be dated the ~~right to participate directly~~ Closing Date and shall otherwise be in the ~~making~~ form of ~~decisions~~ the Revolving Credit Note replaced thereby. The Revolving Credit Notes surrendered to Agent shall be returned by ~~the Lenders among themselves~~Agent to Borrower marked "cancelled". (fe) ~~In connection with any such assignment or participation or proposed assignment or participation or any grant~~ For avoidance of ~~a security interest in~~doubt, ~~or pledge of, its rights under and interest in~~ the parties to this ~~Agreement, a Lender may, subject to~~ Agreement acknowledge that the provisions of this Section ~~17.9~~concerning assignments of Revolving Credit Advances and Revolving Credit Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, ~~disclose all documents and information which it now~~ including any pledge or ~~hereafter may have relating~~ assignment by a Lender of any Revolving Credit Advance or Revolving Credit Note to Borrower 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 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. (hf) ~~Agent (~~Except as otherwise provided in this SECTION 10.2 no Lender shall, as between Borrower and that Lender, be relieved of any of its obligations hereunder as a ~~non-fiduciary agent on behalf~~ result of ~~Borrower) shall maintain~~any sale, assignment, transfer or negotiation of, or ~~cause to be maintained~~granting of participation in, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 Revolving Credit Advances or other Obligations owed to such ~~Registered Loan (~~Lender. Any Lender permitted to sell assignments and ~~the registered note, if any, evidencing the same)~~ participations under this SECTION 10.2 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 furnish any information concerning Borrower and its Subsidiaries and Affiliates in the ~~same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration~~ possession 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 that Lender of all or any portion of its Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time to Assignees and Participants (including, subject to SECTION 10.2(g), prospective Assignees and Participants). (g) Borrower shall assist any Lender permitted to sell assignments or participations under this SECTION 10.2 in whatever manner reasonably necessary in order to enable or effect any such assignment or participation, including (but not limited 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. Borrower ~~may reasonably request~~shall certify the correctness, completeness and accuracy of all descriptions of Borrower and its affairs provided, prepared or reviewed by Borrower that are contained in any selling materials and all other information provided by it and included in such materials. No information shall be provided to any potential Assignee or Participant unless such potential Assignee or Participant has agreed in writing to use reasonable good faith efforts to maintain such information as confidential on the same basis as such Person maintains its own proprietary information which it desires not to disseminate.

Appears in 2 contracts

Sources: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)

Assignments and Participations. (a) ~~Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, ~~delayed,~~ delayed or conditioned (~~provided that no written consent of Agent or Borrower~~ but shall not be required (A) if an Event of Default has occurred and is continuing, or (B) in connection with an assignment to ~~a Person that is a~~ the DIP Lender or an Affiliate (other than individuals) of a the DIP Lender), ~~any~~ the DIP Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (each, an “Assignee”~~; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee~~) all or any portion of the ~~Obligations, the Commitments~~ Obligations and the other rights and obligations of ~~such~~ the DIP Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by ~~Agent~~the DIP Lender) of $~~5,000,000~~ 100,000 (except such minimum amount shall not apply to (x) an assignment or delegation by ~~any~~ the DIP Lender to any ~~other Lender or an~~ Affiliate of ~~any~~ the DIP Lender or (y) a group of new DIP Lenders, each of which is an Affiliate of each other or a Related Fund of such new DIP Lender to the extent that the aggregate amount to be assigned to all such new DIP Lenders is at least $~~5,000,000~~100,000); provided, however, that Borrower ~~and Agent~~ may continue to deal solely and directly with ~~such~~ the DIP Lender in connection with the interest so assigned to an Assignee until (i) 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~~ the DIP Lender and the Assignee, and (ii) ~~such~~ the DIP Lender and its Assignee have delivered to Borrower an assignment and ~~Agent an Assignment~~ acceptance agreement in form and ~~Acceptance and Agent has notified~~ substance acceptable to the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500DIP Lender. (b) From and after the date that ~~Agent notifies~~ the ~~assigning~~ DIP Lender ~~(with a copy to Borrower) that it~~ has received an executed ~~Assignment~~ assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~acceptance agreement, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such ~~Assignment~~ assignment and ~~Acceptance~~acceptance agreement, ~~shall be a “Lender” and~~ shall have the rights and obligations of a the DIP Lender under the Loan Documents, and (ii) the ~~assigning~~ DIP Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such ~~Assignment~~ assignment and ~~Acceptance~~acceptance agreement, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an ~~Assignment~~ assignment and ~~Acceptance~~ acceptance agreement covering all or the remaining portion of an the assigning DIP Lender’s rights and obligations under this Agreement and the other Loan Documents, ~~such~~ the DIP Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release ~~any~~ the assigning DIP Lender from obligations that survive the termination of this Agreement, including ~~such~~ the assigning DIP Lender’s obligations under Section ~~15 and Section 17.9(a)~~15. (c) By executing and delivering an ~~Assignment~~ assignment and ~~Acceptance~~acceptance agreement, the assigning DIP Lender 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~~ assignment and ~~Acceptance~~acceptance agreement, such assigning DIP 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 Loan Document furnished pursuant hereto, (ii) such assigning DIP Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such ~~Assignment~~ assignment and ~~Acceptance~~acceptance agreement, (iv) such Assignee will, independently and without reliance upon ~~Agent, such~~ the assigning ~~Lender or any other~~ DIP Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes ~~Agent~~ the DIP Lender to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~Agent~~the DIP Lender, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a DIP Lender. (d) ~~Immediately upon Agent’s receipt of the required processing fee, if applicable,~~ By executing and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~delivering an assignment and acceptance agreement, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto~~Assignee. (e) ~~Any~~ The DIP 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,~~ the Obligations and the other rights and interests of ~~that~~ the DIP Lender (the “Originating DIP Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating DIP Lender shall remain a “DIP Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the ~~Obligations, the Commitments,~~ Obligations and the other rights and interests of the Originating DIP Lender hereunder shall not constitute a “DIP Lender” hereunder or under the other Loan Documents and the Originating DIP Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating DIP Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent, and the Lenders~~ Borrower shall continue to deal solely and directly with the Originating DIP Lender in connection with the Originating DIP Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) no the DIP Lender shall not 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~~ the DIP Lender (other than a waiver of default interest), or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if ~~such~~ the DIP 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 DIP 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,~~ Borrower, the Collections of Borrower or its Subsidiaries, 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~~DIP Lender. (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 the DIP Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries~~ any Loan Party 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Senior Secured, Super Priority Debtor in Possession Loan and Security Agreement (Implant Sciences Corp), Loan and Security Agreement (Implant Sciences Corp)

Assignments and Participations. (a) ~~Any~~ At any time after the Closing Date the Lender may, with the prior written consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as~~ the Borrower provided no Event of Default ~~exists~~has occurred and is continuing, ~~with~~ assign to one or more banks or financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the ~~prior written~~ Note payable to its order); 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 the Revolving Credit Facility of this Agreement, (ii) for each assignment involving the issuance and transfer of a Note, the assigning Lender shall execute an Assignment and Acceptance and the Borrower hereby consents to execute a replacement Note to give effect to the assignment, (iii) the minimum Revolving Credit Commitment which shall be assigned is $5,000,000 or, if less, its total Revolving Credit Commitment, (iv) such assignee shall have an office located in the United States, and (v) no consent of ~~Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or~~ the Borrower shall be required in connection with any assignment by the Lender to an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion affiliate of the ~~Obligations~~Lender. Upon such execution, delivery, approval and acceptance, from and after the ~~Commitments~~ effective date specified in each Assignment and ~~the other rights and obligations of such Lender hereunder and under the other Loan Documents~~Acceptance, ~~in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to~~ (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under such Note have been assigned or negotiated to it pursuant to such Assignment and ~~Acceptance, shall be a “Lender” and shall~~ Acceptance have the rights and obligations of a Lender ~~under the Loan Documents,~~ hereunder and a holder of such Note and (iiy) the ~~assigning Lender~~ assignor thereunder shall, to the extent that rights and obligations hereunder ~~and~~ or under ~~the other Loan Documents~~ such Note have been assigned or negotiated by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement~~, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~. (cb) 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~~ the assignment made under such Assignment and ~~Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations~~ Acceptance is made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.and

Appears in 2 contracts

Sources: Revolving Credit Agreement (Crown Crafts Inc), Revolving Credit Agreement (Crown Crafts Inc)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent~~Agent and, ~~which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ so long as no Event of Default ~~exists~~has occurred and is continuing, with the ~~prior~~ written consent of ~~Borrower, which consent of~~ Subsidiary Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that no written consent of Agent or Subsidiary Borrower shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Irish Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)1,500,000; provided, however, that Subsidiary Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Subsidiary Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Subsidiary Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) unless ~~waived by Agent~~the assignment occurs prior to the date that is 90 days after the Closing Date, the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent and Subsidiary Borrower shall not be required (and payment of any fees shall not be required) 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 and no Lender shall assign or participate all or any portion of its Commitment or portion of the Obligations to a Person which it knows is a direct competitor of Subsidiary Borrower. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Subsidiary Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Irish Loan Documents, and (ii) the ~~assigning~~ assignor Lender shall, to the extent that rights and obligations hereunder and under the other Irish Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section ~~10.3~~11.3 hereof) and be released from ~~any future~~ 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 and the other Irish Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Subsidiary Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Irish Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Subsidiary Borrower or the performance or observance by Subsidiary Borrower of any of its obligations under this Agreement or any other Irish Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Irish Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the Originating Lender shall remain a “"Lender” " for all purposes of this Agreement and the other Irish Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “"Lender” " hereunder or under the other Irish Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Subsidiary Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s 's rights and obligations under this Agreement and the other Irish 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 Irish Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Irish 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~~ a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Irish 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Subsidiary 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan Agreement (Palm Inc), Loan Agreement (Palm Inc)

Assignments and Participations. (a) Except as set forth in this clause (a), no Lender may assign or delegate all or any part of the Obligations, the Revolver Commitments or the other rights and obligations of such Lender hereunder and under the other Loan Documents. Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee~~ Transferees (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500.~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. Notwithstanding anything to the contrary in this Agreement, so long as no Event of Default shall have occurred and be continuing, a Lender that intends to make an assignment pursuant to this clause (a) (other than to another existing Lender) hereby agrees to give prior written notice to Borrower of its intention to do so and Borrower shall have three (3) Business Days after receipt of such Lender’s written notice to object to the proposed Eligible Transferee by written notice to such Lender. If Borrower does not deliver such objection, it shall be (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons (other than natural persons) not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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) Borrower, 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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~ bona fide 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~~Section 14.1, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower’s business, provided that the Persons to whom such disclosure is made will be informed of the confidential nature of all Reports and ~~its Subsidiaries~~ non-public information so disclosed and ~~their respective businesses~~shall be instructed to, and shall agree to, keep such information confidential. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (Unified Grocers, Inc.), Loan and Security Agreement (Unified Grocers, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such ~~Lender~~ Lender, in each case hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $~~5,000,000~~ 5,000,000; provided however that, so long as no Event of Default has occurred and is continuing, Borrower shall have approved such Eligible Transferee (~~except such minimum amount~~ which approval shall not ~~apply to (x) an assignment~~ be unreasonably withheld, delayed or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000conditioned); provided, ~~however~~further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an a fully executed Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 16 and Section ~~17.9(a)~~17.8 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ shall, to the extent permitted by law, be deemed to have the right of ~~set~~ 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.8, disclose all documents and information which it now or hereafter may have relating to Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (Sharper Image Corp), Loan and Security Agreement (Sharper Image Corp)

Assignments and Participations. (a) ~~Any~~ With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not 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 ~~may~~or an Affiliate (other than individuals) of a Lender; provided 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 written notice thereof, and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, ~~delayed,~~ delayed or conditioned, and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower~~ shall not ~~be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall~~ be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan ~~Party~~ Party, or Affiliate of a Loan ~~Party~~ Party, shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission. (d) 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 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, however, 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) Borrower, 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~~ decrease the amount or ~~postpones~~ postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 ~~Borrower~~ Parent and its Subsidiaries and their respective businesses. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission. (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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (Oclaro, Inc.), Credit Agreement (Oclaro, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent~~Agent and, ~~which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ so long as no Event of Default ~~exists~~has occurred and is continuing, with the ~~prior~~ written consent of ~~Borrower, which consent of~~ Subsidiary Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that no written consent of Agent or Subsidiary Borrower shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other UK Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)1,500,000; provided, however, that Subsidiary Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Subsidiary Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Subsidiary Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) unless ~~waived by Agent~~the assignment occurs prior to the date that is 90 days after the Closing Date, the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent and Subsidiary Borrower shall not be required (and payment of any fees shall not be required) 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 and no Lender shall assign or participate all or any portion of its Commitment or portion of the Obligations to a Person which it knows is a direct competitor of Subsidiary Borrower. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Subsidiary Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the UK Loan Documents, and (ii) the ~~assigning~~ assignor Lender shall, to the extent that rights and obligations hereunder and under the other UK Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section ~~10.3~~11.3 hereof) and be released from ~~any future~~ 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 and the other UK Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Subsidiary Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 UK Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Subsidiary Borrower or the performance or observance by Subsidiary Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other UK Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the Originating Lender shall remain a “"Lender” " for all purposes of this Agreement and the other UK Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “"Lender” " hereunder or under the other UK Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Subsidiary Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s 's rights and obligations under this Agreement and the other UK 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 UK Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other UK 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~~ a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the UK 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Subsidiary 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~~ 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 UK Loan Documents or any direct rights as to the other Lenders, Agent, Subsidiary Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Subsidiary Borrower ~~and its Subsidiaries and their respective businesses~~or Subsidiary Borrower's business. (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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan Agreement (Palm Inc), Loan Agreement (Palm Inc)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, ~~delayed,~~ delayed or conditioned, ~~and so long as no Event of Default exists~~and, ~~with the prior written~~ in each case, consent ~~of Borrower, which consent of Borrower~~ shall not ~~be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall~~ be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (each, an “Assignee”; ” (provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an ~~Assignee~~Assignee except pursuant to Section 13.1(i)) all or any portion of the ~~Obligations, the Commitments~~ Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $~~5,000,000~~ 1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $~~5,000,000~~1,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by ~~Agent~~Agent in its sole discretion, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Obligations owing to the ~~Commitments~~ Lenders arising therefrom~~. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto~~. (ei) 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,~~ Obligations and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the ~~Obligations, the Commitments,~~ Obligations 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) Borrower, 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 (vvii) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. (fii) ~~In connection with any~~ Each Participant shall be entitled to additional payments from Borrower pursuant to Section 16.1 as if 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,~~ Participant were a Lender ~~may,~~ (and subject to the ~~provisions of~~ requirements and limitations imposed on such Lender with respect to such additional payments, including the requirements under Section ~~17.9~~16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender and if additional amounts are required to be paid pursuant to Section 16, ~~disclose all documents and information which it now or hereafter may have relating~~ to the Borrower 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 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. (h) 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 one or both of the Term Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”Agent). Other than in connection with an assignment by a Lender of all or any portion of its portion of each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (Jack Cooper Holdings Corp.), Credit Agreement (Jack Cooper Holdings Corp.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ (i) Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (iA) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (iiB) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (~~iii~~C) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000, and (ii) so long as no Event of Default has occurred and is continuing, such assigning Lender shall obtain the consent of the Administrative Borrower, which consent shall not be unreasonably withheld or delayed. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Obligors and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 16 and Section ~~17.9(a)~~17.10 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Obligors or the performance or observance by ~~Borrower~~ Obligors of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 Commitments, and the other rights and interests of the Originating Lender hereunder shall ~~not~~ not, solely as a result of such participation, 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) ~~Borrower~~Obligors, 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~~ Participant, solely in its capacity as a 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ Obligors 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~~ shall, to the extent permitted by applicable law, be deemed to have the right of ~~set~~ 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, ~~Borrower~~Obligors, the Collections of ~~Borrower~~ Obligors or ~~its~~ their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No ~~Participant~~ Participant, solely as a 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.10, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Obligors and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (SMART Modular Technologies (WWH), Inc.), Loan and Security Agreement (SMART Modular Technologies (DE), Inc.)

Assignments and Participations. The Second Lien Lenders will be permitted to assign loans and commitments (aother than to natural persons, Disqualified Lenders or Second Lien Lenders who have become Disqualified Lenders) ~~Any~~ with the consent of the Borrower (unless an Event of Default has occurred and is continuing or such assignment is an assignment of a Second Lien Loan to a Lender, an affiliate of a Lender ~~may~~or an approved fund or managed account) and the Second Lien Agent, in each case such consent not to be unreasonably withheld or delayed. The Borrower will be deemed to have consented if it has not responded within 15 business days after written request for consent to an assignment of Second Lien Loans. Each assignment (except to other Second Lien Lenders or their affiliates or approved funds or managed accounts) will be in a minimum amount of $5.0 million. The Second Lien Agent will receive a processing and recordation fee of $3,500, payable by the assignor and/or the assignee, with each assignment. The Borrower will provide the ~~prior written consent~~ list of Disqualified Lenders to the Second Lien Agent, ~~which consent~~ and the Second Lien Agent will make the list of ~~Agent shall not~~ Disqualified Lenders available to a Second Lien Lender upon request by such Second Lien Lender. In addition, the Second Lien Loan Documents will provide that assignments of loans under the Second Lien Facility to the Borrower or any of its subsidiaries will be ~~unreasonably withheld~~permitted through Dutch auctions open to all Second Lien Lenders on a pro rata basis in accordance with customary procedures, ~~delayed, or conditioned, and~~ in each case so long as (i) no Event of Default ~~exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed,~~ has occurred and is continuing or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender would result after giving effect to any ~~other Lender or an Affiliate of any Lender or~~ such assignment pursuant to clause (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000b); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning Lender shall,~~ Second Lien Loans purchased are automatically and immediately cancelled. The Second Lien Lenders will be permitted to ~~the extent that~~ participate loans and commitments to other people (except Disqualified Lenders). Voting rights ~~and obligations hereunder and under the other Loan Documents have been assigned by it pursuant~~ of participants will be limited to matters in respect of (a) increases in commitments participated to such ~~Assignment~~ participant, (b) reductions of principal, interest (other than default interests) or fees (it being understood and ~~Acceptance~~agreed that the waiver of any mandatory prepayment, ~~relinquish its rights (except with respect to Section 10.3)~~ default interest, default or event of default will not require the consent of the participant), and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) ~~By executing~~ extensions of scheduled amortization, date of payment of interest and ~~delivering an Assignment~~ any fee or final maturity and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) ~~Immediately upon Agent’s receipt~~ releases 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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~~ all or ~~in any~~ substantially all of the ~~Loan Documents) supporting~~ aggregate value of 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~~ Second Lien Guarantees (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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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~~ any transfer or sale of ~~all~~ Collateral or of the relevant Guarantor or any ~~portion~~ other transaction permitted by the Second Lien Loan Documents). Notwithstanding the foregoing, in no event will the Second Lien Agent be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of ~~its portion of each Term Loan~~ the foregoing, the Second Lien Agent shall not (x) ‎be obligated to ~~an Affiliate of such~~ ascertain, monitor or inquire as to whether any Second Lien Lender or participant or prospective Second Lien Lender or participant is a ~~Related Fund~~ Disqualified Lender or (y) have any liability with respect to or arising out 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 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), 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 Term Loans 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 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 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~~commitments or loans, ~~if any~~or disclosure of confidential information, ~~evidencing the same) may be effected only by the registration of such participation on the Participant Register~~to any Disqualified Lender. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Exchange Agreement (Lannett Co Inc), Exchange Agreement (Lannett Co Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section ~~17.9(a)~~16.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such ~~Commitments~~ Commitment 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 the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.,

Appears in 2 contracts

Sources: Credit Agreement (Servicesource International LLC), Credit Agreement (Servicesource International LLC)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (w) a Lender may not assign all or any portion of the Obligations or the Commitments to Borrower, any Permitted Holder or any Affiliate thereof, (x) the prior written consent of Agent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to any such assignment by a Lender to another Person that is not a Lender or an Affiliate of a Lender, (y) so long as no Event of Default has occurred and is continuing, the prior written consent of Borrower (not to be unreasonably withheld, delayed or conditioned) shall be required prior to any such assignment by a Lender to another Person that is not a Lender or an Affiliate of a Lender and (z) Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, , that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 16 and Section ~~17.9(a)~~17.7 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender ~~pro tanto~~to the extent of such assignment. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Obligations (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) 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. (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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.7, disclose all documents and information which it now or hereafter may have relating to Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (Freshpet, Inc.), Loan and Security Agreement (Freshpet, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees, ~~however~~all, ~~that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to ~~(x)~~ an ~~assignment or delegation by any Lender to any other~~ Eligible Transferee that is a Related Fund of a Lender or an Affiliate of ~~any Lender or (y)~~ 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Lender); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required if (x) 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, or (y) the assignee is a Related Fund of a Lender or an Affiliate of a Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrowers and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 16 and Section ~~17.9(a)~~17.7 of this Agreement. Anything contained in this Section 14.1(b) to the contrary notwithstanding, a Lender may assign any or all of its rights hereunder to a Related Fund or an Affiliate of such Lender without delivering an executed Assignment and Acceptance to the Agent, and without the payment of the above-referenced processing fee; provided, however that (x) Borrower and Agent may continue to deal solely and directly with the assigning Lender until such Assignment and Acceptance has been delivered to Agent, and (y) the failure of such assigning Lender to deliver the Assignment and Acceptance to Agent shall not affect the legality, validity or binding effect of such assignment. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) ~~Immediately~~ Subject to the last sentence of subsection (b) above, immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments ~~arising~~ resulting therefrom. Promptly thereafter Agent shall notify Administrative Borrower of the addition of the Assignee and the resulting adjustment of the Commitments resulting therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, 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~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.7, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers and ~~its~~ their Subsidiaries and their respective businesses. (g) Any other provision in this Agreement notwithstanding, and in addition to Section 2.16, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation ~~31 CFR §~~31, C.F.R. Section 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) ~~Agent (as a non-fiduciary agent~~ Agent, on behalf of ~~Borrower)~~ the Borrowers, shall ~~maintain, or cause~~ maintain at its address set forth in Section 12 a copy of each Assignment and Acceptance delivered to ~~be maintained,~~ it and a register for the recordation of the names and addresses of Lenders, and the Commitment of, and certain of the Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”~~) on which it enters~~ ), provided that, in the ~~name and address~~ case of each Lender as the registered owner of one or both of the Term Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment or delegation covered by ~~a Lender~~ the last sentence of ~~all or any portion of its portion of each Term Loan to an Affiliate of such Lender or a Related Fund of such Lender~~ subsection (ib) ~~a Registered Loan (and the registered note~~above, ~~if any, evidencing the same) may be assigned or sold~~ which is not reflected 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~~ assignee Lender shall maintain a comparable Register on behalf 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 Borrower. The entries in the ~~same aggregate principal amount~~ Register shall be ~~issued~~ conclusive and binding for all purposes, and Borrower, Parent, Agent, and Lenders may treat each Person whose name is recorded in the Register pursuant 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), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered terms hereof as ~~the owner thereof for the purpose of receiving all payments thereon and~~ a Lender hereunder for all ~~other purposes~~purposes of this Agreement, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loans 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 Lender sells participations in the Registered Loan, such ~~Lender, as a non-fiduciary agent on behalf of Borrower,~~ Lender 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 be participated in whole or in part only by registration of such participation on the Participant Register (and each ~~registered note~~ Registered Note shall expressly so provide). Any participation of such Registered Loan (and the ~~registered note~~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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (Evergreen Holdings Inc), Loan and Security Agreement (Trust Created February 25 1986)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent ~~shall not be unreasonably withheld, delayed, or conditioned,~~ and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of~~ Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that (i) no written consent of Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee, (ii) no written consent of Borrower shall be required in connection with any assignment or delegation if an Event of Default shall have occurred and be continuing, and (iii) no assignment and delegation shall be made, without the prior written consent of Borrower, to a any Person that is ~~a Lender~~ organized in or ~~an Affiliate (~~under the laws of any jurisdiction other than ~~individuals~~the United States or any state or other political subdivision thereof or is otherwise not a United States person as defined in the IRC (a "Foreign Person") ~~of a Lender~~if payments to such Person would require Borrower to pay any Taxes or any additional amounts pursuant to Section 16.11(e)), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating or other beneficial interests ("Participating Interests") in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such Participating Interests by a Lender to an Eligible Transferee); provided, however, 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~~ Participating Interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “"Lender” " hereunder or under the other Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any ~~participating interest~~ 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~~ a material portion 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~~has a Participating Interest, (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)~~Lender, or (E) ~~decreases~~ reduce the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower ~~hereunder~~ under any of the Loan Documents (including, without limitation, under Section 16.11) 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~~ set-off in respect of its ~~participating interest~~ Participating Interest in amounts owing under this Agreement to the same extent as if the amount of its ~~participating interest~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~ Participating Interest or proposed assignment or ~~participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement~~Participating Interest, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business, so long as such Lender has first secured a customary confidentiality agreement from such proposed assignee or Participant. (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 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~~Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent ~~(as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause~~ agrees to ~~be maintained, a register (~~use its reasonable best efforts from and after the ~~“Register”) on which it enters the name~~ date hereof to assign and address of each Lender as the registered owner of one or both of the Term Loans (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 delegate at least $10,000,000 of its ~~portion of each Term Loan~~ Total Commitment in accordance with the provisions hereof to a transferee that is not an Affiliate of ~~such Lender or a Related Fund of such Lender (i) a Registered Loan (and~~ Foothill so as to reduce 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 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), 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 Term Loans 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 RegisterSyndication Reserve. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 2 contracts

Sources: Loan and Security Agreement (Acme Communications Inc), Loan and Security Agreement (Acme Television LLC)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more ~~assignees so long as such prospective assignee is~~ Eligible Transferees (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part, of the Obligations, the ~~Commitments~~ Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an a fully executed Assignment and Acceptance ("Assignment and ~~Agent has notified~~ Acceptance") in the ~~assigning Lender~~ form of ~~its receipt thereof in accordance with Section 13.1(b),~~ Exhibit A-1 which Assignment and Acceptance shall contain an acknowledgment of the terms of the Participation and Intercreditor Agreement; and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an a fully executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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 ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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~~ warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, ~~sufficiency~~ sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or any guarantor or the performance or observance by ~~Borrower~~ Borrowers or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon Agent, such assigning ~~Lender~~ 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to ~~Agent,~~ Agent by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of~~ each Assignee's making its processing fee payment under the ~~required processing fee, if applicable,~~ Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments of the Assignor and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such ~~Commitments~~ Commitment of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, which consent shall not be unreasonably withheld, sell to one or more ~~commercial banks, financial institutions, or other~~ Persons (a “"Participant”") participating interests in ~~all or any portion of its~~ the Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) the Originating ~~Lender shall remain a “~~Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent,~~ Borrowers and ~~the Lenders~~ Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive 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~~ 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~~ a material portion 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~~ hereunder in which such Participant ~~through such Lender (other than a waiver of default interest),~~ is participating; or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or premiums ~~payable to~~ in respect of the Obligations hereunder in which such Participant ~~through such Lender,~~ is participating; and (v) all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if such Originating 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~~ 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; provided, however, that no Participant may exercise any such right of setoff without the notice to and consent of Agent. The rights of any Participant shall 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, ~~Borrower~~Borrowers, the ~~Collections of Borrower or its Subsidiaries~~Collections, the Collateral, or otherwise in respect of the ~~Obligations~~Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of the Lender Group, and Borrowers shall have no rights as a third party beneficiary of any of such provisions. (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~~participation, a Lender ~~may, subject~~ may disclose to ~~the provisions of Section 17.9, disclose~~ a third party all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers or Borrowers' business; provided, that such third party agrees in writing to hold such information confidential and ~~its Subsidiaries and their respective businesses~~not disclose it except as may be required by law. (g) ~~Any~~ Notwithstanding any other provision in this ~~Agreement notwithstanding~~Agreement, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the ~~Federal Reserve Bank~~ FRB or U.S. Treasury Regulation 31 CFR ~~§203.24~~ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law~~. (h) Agent (as~~ . Any Lender may at any time pledge or assign 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 one or both of the Term Loans (and the principal amount thereof and stated security 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 each Term Loan~~ rights under this Agreement 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund secure obligations of such Lender, ~~and which~~ provided, that no such pledge or assignment ~~is not recorded in the Register, the assigning Lender, on behalf~~ of ~~Borrower,~~ a security interest shall ~~maintain a register comparable to the Register. (i) In the event that~~ release a Lender ~~sells participations in the Registered Loan,~~ from any of its obligations hereunder or substitute any such ~~Lender,~~ pledgee or assignee for 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.party hereto

Appears in 2 contracts

Sources: Loan and Security Agreement (Fao Inc), Loan and Security Agreement (Right Start Inc /Ca)

Assignments and Participations. (a) ~~Any~~ Each Lender may, with the ~~prior~~ written consent of the Borrower and the Administrative Agent, which ~~consent of Agent~~ consents shall not be unreasonably ~~withheld~~withheld and, ~~delayed~~in the case of the Borrower, ~~or conditioned, and so long as no~~ (A) shall not be required with respect to assignments of Advances (but shall be required with respect to Commitments) while an Event of Default ~~exists~~has occurred and is continuing and (B) shall be deemed given with respect to assignments of Advances (but shall not be so deemed with respect to Commitments) if the Borrower shall not have objected within 10 Business Days following its receipt of written notice of such assignment (and, within five days after written demand by the Borrower (with a copy of such demand to the ~~prior written~~ Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (iv) any Lender that fails to consent ~~of Borrower,~~ to an amendment or waiver hereunder for which consent of ~~Borrower~~ all Lenders (or all affected Lenders) is required and as to which the Required Lenders shall ~~not be unreasonably withheld~~have given their consent, ~~delayed~~such Lender will), or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an Eligible Transferee~~ Persons (~~each~~other than natural persons) all or a portion of its rights and obligations under this Agreement (including, ~~an “Assignee”~~without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, ~~that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee~~that: (A) ~~all or any portion of the Obligations, the Commitments and the other rights and obligations of~~ such ~~Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount~~ consent shall not ~~apply to (x)~~ be required in the case of an assignment ~~or delegation by any Lender~~ to any other Lender or an Affiliate of any Lender or (yprovided that the Borrower’s written consent (not to be unreasonably withheld) ~~a group~~ will be required in the case of ~~new Lenders, each~~ an assignment of ~~which is~~ Commitments to an Affiliate of ~~each other or a Related Fund~~ any Lender prior to the end of the Availability Period); provided that written notice thereof shall have been given to the Borrower and the Administrative Agent at least three Business Days prior to the date of any such proposed assignment; provided, further, that the failure of such ~~new~~ Lender to give notice to the ~~extent that~~ Borrower and the Administrative Agent as provided herein shall not affect the validity of such assignment; (B) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; (C) 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 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 $25,000,000 or an integral multiple of $5,000,000 in excess thereof; (D) each such assignment shall be to an Eligible Assignee; (E) 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) 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 the Borrower pursuant to this Section 9.07(a), (1) so long as a 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 Section 2.11, 2.14 or 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to be ~~assigned~~ paid) to ~~all such new Lenders is at least~~ the Administrative Agent a processing and recordation fee of $~~5,000,000)~~3,500; provided, however, that ~~Borrower~~ the Administrative Agent may, in its sole discretion, elect to waive such processing and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing recordation fee in the ~~amount~~ case of ~~$3,500.~~any assignment; and (bG) ~~From and after~~ the ~~date that Agent notifies~~ parties to each such assignment (other than, except in the ~~assigning Lender (with~~ case of a ~~copy~~ demand by the Borrower pursuant to this Section 9.07(a), the Borrower) ~~that it has received~~ shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an ~~executed~~ Assignment and Acceptance and, if ~~applicable~~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 (F)(3) of this Section 9.07(a)), ~~payment~~ a processing and recordation fee of $3,500; provided, however, that the ~~required~~ Administrative Agent may, in its sole discretion, elect to waive such processing ~~fee~~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. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) 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 ~~under the Loan Documents,~~ hereunder and (iiy) 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 ~~any future~~ 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 (~~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 and the other Loan Documents~~Agreement, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(ahereto). (cb) 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 ~~Loan Document~~ 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 ~~Loan Document~~ instrument or 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 any 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~~ assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such ~~actions~~ 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 ~~Agent,~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto~~, and~~ ; and (vivii) such ~~Assignee~~ 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. (dc) ~~Immediately upon Agent’s~~ Upon its receipt of ~~the required processing fee~~an Assignment and Acceptance executed by an assigning Lender, ~~if applicable~~an assignee representing that it is an Eligible Assignee and, ~~and delivery of notice~~ to the ~~assigning Lender~~ extent its consent is required pursuant to Section ~~13.1(b~~9.07(a), the Borrower, 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 written notice thereof to the Borrower. (d) The Administrative Agent, acting solely for this ~~Agreement~~ purpose as the agent of the Borrower, shall maintain at its address referred to in Section 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 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 ~~deemed to be amended to the extent~~conclusive and binding for all purposes, ~~but only to the extent~~absent manifest error, ~~necessary to reflect the addition of the Assignee~~ and the ~~resulting adjustment~~ Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~the Commitments arising therefrom~~this Agreement. The ~~Commitment allocated~~ Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to ~~each Assignee shall reduce such Commitments of the assigning Lender pro tanto~~time upon reasonable prior notice. (e) ~~Any~~ Each Lender may ~~at any time~~ sell participations to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons~~ entities (~~a “Participant”~~other than the Borrower or any of its Affiliates or any natural person) ~~participating interests~~ in or to all or ~~any~~ a portion of its ~~Obligations~~rights and obligations under this Agreement (including, without limitation, all or a portion of its ~~Commitment,~~ Commitment and the ~~other rights and interests~~ Advances owing to it) without the consent of ~~that Lender (~~the ~~“Originating Lender”) hereunder and under~~ Administrative Agent or the ~~other Loan Documents~~Borrower; provided, however, ~~that~~ 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 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 such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ; (ii) ~~the Originating~~ 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, ~~Agent,~~ the Agents and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents,~~ Agreement; and (ivv) no ~~Lender~~ participant under any such participation shall ~~transfer or grant~~ have any ~~participating interest under which the Participant has the~~ right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or ~~waiver with respect to, this Agreement or any other Loan Document~~therefrom, except to the extent that such ~~amendment to~~amendment, waiver or consent would reduce the principal of, or ~~consent~~ stated rate of interest on, the Advances or ~~waiver with respect~~ the stated rate at which any fees or any other amounts payable hereunder are calculated, 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 Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower in writing after any sale of a participation by such Lender pursuant to this ~~Agreement~~ 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, loans, letters of credit or its other obligations under any Loan ~~Document would (A~~Document) ~~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 (~~any Person except to the extent ~~expressly provided herein~~ that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in ~~any~~ registered form under Section 5f.103-1(c) of the ~~Loan Documents) supporting~~ United States Treasury Regulations. The entries in the ~~Obligations hereunder~~ Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~which~~ the Participant Register as the owner of such ~~Participant is participating, (D) postpone~~ participation for all purposes of this Agreement notwithstanding any notice to the ~~payment of, or reduce~~ contrary. For the ~~amount of~~avoidance of doubt, the ~~interest or fees payable to such Participant through such Lender~~ Administrative Agent (~~other than a waiver of default interest), or (E~~in its capacity as Administrative Agent) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) 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~~ no responsibility for maintaining a 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesRegister. (f) In Any Lender may, in connection with any ~~such~~ assignment or participation or proposed assignment or participation ~~or any grant of a security interest in~~pursuant to this Section 9.07, ~~or pledge of, its rights under and interest in this Agreement, a Lender may, subject~~ disclose to the ~~provisions of Section 17.9~~assignee or participant or proposed assignee or participant, ~~disclose all documents and~~ any information ~~which it now or hereafter may have~~ relating to the Borrower ~~and its Subsidiaries and their respective businesses~~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 Information relating to the Borrower received by it from such Lender as more fully set forth in Section 9.08. (g) ~~Any~~ Notwithstanding any other provision set forth in this ~~Agreement notwithstanding~~Agreement, any Lender may at any time create a security interest ~~in, or pledge,~~ in all or any portion of its rights under ~~and interest in~~ this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors 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. (h) 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 one or both of the Term Loans (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 System or any portion of its portion of each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of central bank having jurisdiction over 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Bridge Term Loan Credit Agreement (AbbVie Inc.)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the ~~prior written~~ consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower,~~ Borrower (which consent of Borrower shall not be (x) required if (i) a Payment Default or an Insolvency Default has occurred and is continuing or (ii) any other Event of Default has occurred and has been continuing for a period of at least 30 days, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender), any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the ~~Commitments~~ Revolver Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender~~ Lender’s Revolver Commitment or ~~(y) a group~~ amount of ~~new Lenders~~Loans, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the consent of Borrower shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article X and Section ~~17.9(a)~~11.10 of this Agreement. No assignee shall be entitled to the benefits of Section 10.11 unless the Borrower is notified of the assignment and such Assignee has complied with the requirements of Section 10.11. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above, 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 or the Loans arising therefrom. The Revolver Commitment and the Loans allocated to each Assignee shall reduce such Revolver Commitments or Loans of the assigning Lender pro tanto. (e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other institutional Persons not Affiliates of such Lender and who are not Direct Competitors (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, its Loans, the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 Loans, 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. A Participant shall not be entitled to receive any greater payment under Section 10.11 than the applicable Originating Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a change in Law that occurs after the Participant acquired the applicable participation. A Participant shall not be entitled to the benefits of Section 10.11 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower and Agent, to comply with Section 10.11 as though it were a Lender. (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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~11.10, disclose all documents and information which it now or hereafter may have relating to Borrower 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 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. (h) ~~Agent (~~Each Lender hereby represents and warrants to Borrower that, 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 one or both of the ~~Term Loans~~ Closing Date (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 each 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 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), 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 Term Loans 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 Lender sells participations in the Registered Loan, such LenderAssignee, 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~~ date that such ~~Registered Loans that~~ Person becomes a Lender), it is subject to such participations) (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 Registera Qualified Purchaser. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Ares Commercial Real Estate Corp)

Assignments and Participations. ~~(a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall~~ The Borrower may not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, assign any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the ~~Obligations, the Commitments and the other~~ Borrower’s rights ~~and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment~~ or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Loan ~~Document furnished pursuant hereto~~Document; provided, however, that: (iia) ~~such assigning Lender makes no representation~~ subject to Lender’s prior written consent, not to be unreasonably withheld, conditioned or ~~warranty and assumes no responsibility with respect to~~ delayed, the ~~financial condition of~~ Borrower may assign its rights or ~~the performance or observance by Borrower of any of its~~ obligations under this Agreement or any other Loan Document ~~furnished pursuant hereto,~~ in connection with a change of control so long as (~~iii~~i) the acquiring company shall have its senior unsecured debt rated by S&P and ▇▇▇▇▇’▇ and such ~~Assignee confirms that it has received a copy of this Agreement, together with such other documents~~ senior unsecured debt shall be rated at least BBB by S&P 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, least Baa2 by ~~the terms hereof and thereof, together with such powers as are reasonably incidental thereto,~~ ▇▇▇▇▇’▇ and (viii) ~~such Assignee~~ any successor entity agrees ~~that it will perform all of the obligations which~~ to be bound by the terms of this Agreement ~~are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt~~ and each 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; ~~provided, however, that~~ and (ib) the ~~Originating Lender shall remain~~ Borrower may also assign its rights or obligations under this Agreement or any other Loan Document in connection with a “change of control with the Lender~~” for all purposes~~ ’s consent, in its sole and absolute discretion, so long (x) as any successor entity agrees to be bound by the terms of this Agreement and each of the other Loan Documents and (y) the ~~Participant receiving~~ Borrower provides the ~~participating interest~~ Lender with written notice of such change of control, along with such information, that is sufficient, in the ~~Obligations~~Lender’s sole and absolute discretion, for the Lender to determine whether or not it would like to accept such assignee as a substitute Borrower hereunder, at least thirty (30) days prior to the consummation of such change of control. Notwithstanding anything in this subsection (b) to the contrary, if the Borrower provides the Lender with written notice of a change of control, along with the information required by clause (y) above less than thirty (30) days prior to the effectiveness of such change of control, the ~~Commitments~~Lender shall have thirty (30) days to determine, in its sole and absolute discretion, whether or not to consent to the ~~other rights and interests~~ change of control or to require the Borrower to repay the principal amount of the ~~Originating Lender hereunder shall not constitute~~ Revolving Loan then outstanding, together with all fees, costs and expenses and accrued and unpaid interest thereon (a “~~Lender” hereunder~~ Repayment Determination”). If the Lender delivers notice of a Repayment Determination to the Borrower, any purported assignment by the Borrower of its rights or ~~under the other Loan Documents and the Originating Lender’s~~ obligations under this Agreement or any other Loan Document shall ~~remain unchanged~~be ineffective, ~~(ii)~~ the ~~Originating Lender~~ Lender’s obligation to make Advances shall ~~remain solely responsible for the performance of such obligations, (iii) Borrower, Agent~~immediately be terminated, and the ~~Lenders~~ Borrower shall ~~continue~~ repay the principal amount of the Revolving Loan then outstanding, together with all fees, costs and expenses and accrued and unpaid interest thereon as described in the prior sentence. The Lender may assign to ~~deal solely and directly with the Originating Lender in connection with the Originating Lender’s~~ one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the ~~other Loan Documents~~Advances owing to it), ~~(iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment~~ without notice to, or ~~any~~ the consent ~~or waiver with respect to, this Agreement~~ of the Borrower or any other Loan ~~Document~~Party; provided, ~~except~~ however, that, other than assignments to (i) an Affiliate of the ~~extent~~ Lender, (ii) any entity or subdivision of the United States government and (iii) Federal Reserve Banks, which, for the avoidance of doubt shall not have a limit on the number of such ~~amendment to~~assignments, the Lender shall not be permitted to assign such rights and obligations to more than three (3) Persons without the consent of the Borrower. The Lender may sell participations to one or ~~consent~~ more Persons (other than the Borrower or ~~waiver with respect to this Agreement or of~~ any other Loan ~~Document would (A) extend the final maturity date of the Obligations hereunder~~ Party or entity in which ~~such Participant is participating~~the Borrower has any direct or indirect equity interest, and not to exceed more than three (B3) ~~reduce~~ Persons without the ~~interest rate applicable~~ Borrower’s consent) in or to ~~the Obligations hereunder in which such Participant is participating, (C) release~~ all or ~~substantially all~~ a portion 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, its rights and ~~(v) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding~~ obligations under this Agreement ~~are due and unpaid~~(including, without limitation, all 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~~ a portion of its ~~participating interest in amounts~~ Commitment and the Advances 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~~it). 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~~may, ~~Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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~~pursuant to this Section 7.11, ~~or pledge of, its rights under and interest in this Agreement, a Lender may, subject~~ disclose to the ~~provisions of Section 17.9~~assignee or participant or proposed assignee or participant, ~~disclose all documents and~~ any information ~~which it now or hereafter may have~~ relating to the Borrower ~~and its Subsidiaries and their respective businesses. (g) Any other provision in this Agreement notwithstanding, any~~ furnished to the Lender ~~may at any time create a security interest in,~~ by or pledge, all or any portion of its rights under and interest in this Agreement 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. (h) Agent (as a non-fiduciary agent on behalf of the 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Line of Credit Agreement (Isis Pharmaceuticals Inc)

Assignments and Participations. (a) ~~Any~~ The Lender may, ~~with~~ upon at least 30 Business Days’ notice to the ~~prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of~~ Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign ~~and delegate~~ to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) Persons all or any portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations ~~of such Lender hereunder~~ under this Agreement (including, without limitation, the Loan owing to it and ~~under~~ the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Note); provided, however, ~~that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until~~ that: (i) ~~written notice of~~ each such assignment shall be to an Eligible Assignee; (ii) the parties to each such assignment shall execute and deliver to the Borrower an Assignment and Acceptance, together with, if requested, the Note; and (iii) after giving effect to each such assignment, ~~together with payment instructions, addresses, and related information with respect~~ the Lender shall continue to hold at any time at least 50.1% of the outstanding principal amount of the Loan at such time; and (iv) prior to the ~~Assignee~~effectiveness of the first such assignment, this Agreement shall have been ~~given~~ amended in a manner reasonably satisfactory to the Borrower and ~~Agent by such~~ the Lender to provide for a syndicate of lenders in place of the sole lender (with each of the Borrower and the ~~Assignee, (ii)~~ Lender hereby agreeing to negotiate in good faith to effect such ~~Lender and its Assignee have delivered to Borrower and Agent~~ an ~~Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b~~amendment), ~~and~~ which amendment shall in any event: (~~iii~~a) ~~unless waived by Agent~~define the term “Required Lenders” as lenders holding, at any time, more than 50% of the ~~assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the~~ aggregate principal amount of ~~$3,500.~~the Loan outstanding at such time; (b) ~~From~~ provide that waivers, amendments or other modifications of this Agreement requiring consent of all lenders, all affected lenders or otherwise of lenders in excess of those constituting “Required Lenders” will be limited to customary economic matters; (c) provide for a customary “yank-a-bank” provision and a provision to the effect that any provision of this Agreement may be amended with the consent of the “Required Lenders” if, at the time such amendment becomes effective, each lender hereunder not consenting thereto receives payment in full of the principal of and interest accrued on the loans made and all other amounts owing to it or accrued for its account under this Agreement; and (d) contain an agreement by the Lender that it will not enter into any agreement or understanding with any other lender hereunder or any Affiliate of any such other lender to the effect that the Lender’s right to approve any waiver, amendment or other modification of this Agreement shall be subject to the consent of any such other lender, and will otherwise retain the sole right to approve any amendment, modification or waiver of any provision of this Agreement on account of its percentage in interest of the outstanding principal amount of the Loan; provided further, however, that no Person to which an assignment is being made in accordance with this Section 8.07(a) shall be entitled to any additional compensation under Sections 2.07, 2.08 and 2.10 in excess of the aggregate amounts payable under such Sections to the Lender prior to the effective date of such Assignment and Acceptance, unless such additional compensation is payable to such Person as a result of a Change in Law. Any Lender that is a Foreign Lender shall not be entitled to the benefits of Section 2.10 unless such Foreign Lender shall have complied with Section 2.10(e). Upon such execution and delivery from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in each Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i1) 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 the Lender ~~under the Loan Documents,~~ hereunder and (ii2) the ~~assigning~~ Lender ~~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,~~ assignor thereunder shall relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future 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~~ its obligations under this Agreement and ~~the other Loan Documents, such Lender~~ shall cease to be a party ~~hereto and thereto); provided~~hereto, ~~however,~~ provided that ~~nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including~~ such assigning Lender’s ~~obligations~~ rights under ~~Section 15~~ Sections 2.07, 2.10 and ~~Section 17.9(a)~~8.04 shall survive the effective date of such Assignment and Acceptance for the Lender as to matters occurring prior to such effective date. (cb) 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~~ Credit Parties 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 the Note, or any other ~~Loan Document~~ 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 ~~Borrower~~ the Credit Parties or the performance or observance by ~~Borrower~~ the Credit Parties of any of its obligations under this Agreement or the Note, or any other ~~Loan Document~~ instrument or 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 ~~Agent, such~~ the 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) if applicable, such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and assignee confirms that it is an Eligible Assignee; and (vi) such ~~Assignee~~ 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 the Lender. (c) Within ten Business Days after receipt by the Borrower of an Assignment and Acceptance and executed by the Lender and an assignee representing that it is an Eligible Assignee, the Borrower shall, at its own expense, execute and deliver to such Eligible Assignee in exchange for the Note then outstanding a ~~Lender~~new note from the Borrower to the order of such Eligible Assignee in an amount equal to the aggregate principal outstanding of the Loan assumed by it pursuant to such Assignment and Acceptance. Such new note shall be in an aggregate principal amount equal to the aggregate principal amount of the Loan outstanding at the time thereof, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (d) 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 Commitments arising therefrom. The ~~Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any~~ Lender may ~~at any time~~ sell participations to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons~~ entities (other than a ~~“Participant”~~Credit Party or any of its Affiliates) ~~participating interests~~ in or to all or ~~any~~ a portion of its ~~Obligations~~rights and obligations under this Agreement (including, ~~its Commitment~~without limitation, all or a portion of the aggregate outstanding principal amount of the Loan and the ~~other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents~~Note); provided, however, ~~that~~ 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 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 to the Credit Parties for the performance of such obligations, ; (iii) ~~Borrower, Agent, and~~ the ~~Lenders~~ Lender shall remain the holder of the Note for all purposes of this Agreement; (iv) the Credit Parties 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,~~ Agreement; and (ivv) no ~~Lender~~ participant under any such participation shall ~~transfer or grant~~ have any ~~participating interest under which the Participant has the~~ right to approve any amendment toor waiver of any provision of this Agreement or the Note, or any consent ~~or waiver with respect to, this Agreement or~~ to any ~~other Loan Document~~departure by the Credit Parties therefrom, except to the extent that such ~~amendment to~~amendment, waiver or consent would reduce the principal of, or ~~consent~~ interest on, the Loan, or ~~waiver with respect to this Agreement~~ any fees or ~~of any~~ other ~~Loan Document would (A) extend the final maturity date of the Obligations hereunder~~ amounts payable 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 each case to the extent ~~expressly provided herein~~ subject to such participation, or in postpone any date fixed for any payment of ~~the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment~~ principal of, or ~~reduce the amount of~~interest on, the ~~interest or fees payable to such Participant through such Lender (other than a waiver of default interest)~~Loan, or ~~(E) decreases the amount~~ any fees or ~~postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) all~~ other amounts payable ~~by Borrower hereunder~~ hereunder; and provided further that the Credit Parties shall not be ~~determined as if such Lender had not sold such participation, except that, if~~ required to pay any additional 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~~ compensate 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 participant (or the ~~other Loan Documents or any direct rights as to the other Lenders~~Lender, ~~Agent, Borrower, the Collections~~ on behalf of ~~Borrower or its Subsidiaries, the Collateral, or otherwise~~ a participant) in respect of the ~~Obligations. No Participant shall have~~ rights and obligations of such participant relating to this Agreement in excess of what the ~~right~~ Credit Parties would otherwise be required to ~~participate directly in~~ pay to the ~~making of decisions by~~ Lender if the ~~Lenders among themselves~~participation had not been sold. (fe) In The Lender may, in connection with any ~~such assignment or~~ assignment, participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee, participant or proposed assignee or participant, any ~~grant~~ information relating to any member of ~~a security interest in~~the Group furnished to the Lender by or on behalf of such member of the Group; provided that, prior to any such disclosure, the assignee, participant or ~~pledge of, its rights under and interest~~ proposed assignee or participant shall agree to preserve the confidentiality of any Information received by it from the Lender in accordance with the terms of Section 8.08. (f) Notwithstanding any other provision set forth 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 Borrower 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,~~ in all or any portion of its rights under ~~and interest in~~ this Agreement ~~in favor~~ to secure obligations of the Lender, including, without limitation, any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve ~~Bank or U.S. Treasury Regulation 31 CFR §203.24~~System; provided that, ~~and such Federal Reserve Bank may enforce~~ no such pledge or assignment of a security interest in shall release the Lender from any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each Term Loan to an Affiliate of~~ obligations hereunder or substitute any such ~~Lender~~ pledgee 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 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), 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 assignee 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 Loans 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 Registerparty hereto. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (International Flavors & Fragrances Inc)

Assignments and Participations. (a) ~~Any~~ Each Lender ~~may~~shall have the right to sell, ~~with~~ assign or transfer all or any part of its Note or Notes, its Commitment and its rights and obligations hereunder to one or more Affiliates, Lenders, financial institutions, pension plans, insurance companies, investment funds, or similar Persons who are Eligible Assignees; provided, that each sale, assignment or transfer (other than to an -------- Affiliate or a Lender) shall require the ~~prior written consent of Agent, which~~ consent of Agent ~~shall~~ and the Borrower, which consents will not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that ~~no Loan Party~~ if an Event of Default has occurred and is continuing, the consent of the Borrower shall not be required. Any such assignee, transferee or recipient shall have, to the extent of such sale, assignment, or transfer, the same rights, benefits and obligations as it would if it were such Lender and a holder of such Note, Commitment and rights and obligations, including, without limitation, the right to vote on decisions requiring consent or approval of all Lenders or Majority Lenders and the obligation to fund its Commitment; provided, that (1) each such sale, assignment, or transfer (other than to an Affiliate or a Lender) shall be in an aggregate principal amount not less than $5,000,000 Canadian, (2) each remaining Lender shall at all times maintain Commitment then outstanding in an aggregate principal amount at least equal to $5,000,000 Canadian; (3) each such sale, assignment or transfer shall be of a ~~Loan Party shall be permitted to become an Assignee) all or any~~ Pro Rata portion of ~~the Obligations~~such Lender's Commitment, ~~the Commitments and the other~~ (4) no Lender may offer to sell its Note or Notes, Commitment, rights and obligations ~~of such Lender hereunder and under the other Loan Documents,~~ or interests therein in ~~a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ violation of any ~~Lender or~~ securities laws; (y5) ~~a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of~~ no such ~~new Lender to~~ assignments shall become effective until the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such assigning Lender and its ~~Assignee have delivered~~ assignee delivers to Agent and Borrower ~~and Agent~~ an Assignment and Acceptance and ~~Agent has notified~~ the ~~assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Note or Notes subject to such assignment and other documents evidencing any such assignment, and (~~iii~~6) ~~unless waived~~ an assignee Lender that is not a resident of Canada shall not be entitled to claim under Section 5(f) of this Agreement any amount in respect of the assigned Commitment which could not have been claimed by ~~Agent,~~ the assigning ~~Lender or Assignee has paid to Agent for Agent’s separate account a processing~~ Lender. An assignment fee in the amount of $~~3,500.~~ 3,500 Canadian for each such assignment (bother than to an Affiliate or a Lender) ~~From~~ will be payable to Agent by assignor or assignee. Within five (5) Business Days after its receipt of copies of the Assignment and Acceptance and the other documents relating thereto and the Note or Notes, the Borrower shall execute and deliver to Agent (for delivery to the relevant assignee) a new Note or Notes evidencing such assignee's assigned Commitment and if the assignor Lender has retained a portion of its Commitment, a replacement Note in the principal amount of the Commitment retained by the assignor (except as provided in the last sentence of this paragraph (a) such Note or Notes to be in exchange for, but not in payment of, the Note or Notes held by such Lender). On and after the effective date ~~that Agent notifies~~ of an assignment hereunder, the ~~assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder~~ assignee shall for all purposes be a Lender, party ~~hereto and,~~ to this Agreement and any other Loan Document executed by the ~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender”~~ Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, ~~and (ii) the assigning Lender shall,~~ to the same extent ~~that rights~~ as if it were an original party thereto, and ~~obligations hereunder and under~~ no further consent or action by Borrower, Lenders or the ~~other Loan Documents have been assigned by it pursuant~~ Agent shall be required to ~~such Assignment and Acceptance, relinquish its rights (except~~ release the transferor Lender with respect to ~~Section 10.3~~its Commitment assigned to such assignee and the transferor Lender shall henceforth be so released (b) ~~and be released from any future obligations under this Agreement (and~~ Each Lender shall have the right to grant participations in ~~the case of an Assignment and Acceptance covering~~ all or ~~the remaining portion~~ any part of ~~an assigning~~ such Lender~~’s rights~~ 's Notes and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The Commitment ~~allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any time sell~~ hereunder to one or more ~~commercial banks~~pension plans, investment funds, insurance companies, financial ~~institutions,~~ institutions or other ~~Persons (a “Participant”) participating interests in all or any portion of its Obligations~~Persons, ~~its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents;~~ provided, ~~however, that~~ that: (i) each Lender granting a participation shall retain the ~~Originating~~ right to vote hereunder, and no participant shall be entitled to vote hereunder on decisions requiring consent or approval of Lender ~~shall remain~~ or Majority Lenders (except as set forth in (iii) below); (ii) in the event any Lender grants a “participation hereunder, such Lender~~” for all purposes of this Agreement and~~ 's obligations under the ~~other~~ Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, ~~(ii) the Originating~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the holder of any such Note or Notes for all purposes under the Loan Documents, and Agent, each Lender and Borrower shall be entitled to deal with the Lender granting a participation in the same manner as if no participation had been granted; and (iii) ~~Borrower, Agent, and the Lenders~~ no participant shall ~~continue~~ ever have any right by reason of its participation 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 exercise any of the ~~Loan Documents) supporting the Obligations hereunder in which such Participant is participating~~rights of Lenders hereunder, ~~(D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through~~ except that any Lender may agree with any participant that such Lender will not, without the consent of such participant (~~other than a~~ which consent may not be unreasonably withheld) consent to any amendment or waiver requiring approval 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, and (v)~~ 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. (fc) ~~In connection with~~ It is understood and agreed that any Lender may provide to assignees and participants and prospective assignees and participants financial information and reports and data concerning Borrower's properties and operations which was provided to 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~~ Lender pursuant to this Agreement, ~~a Lender may~~provided, ~~subject~~ that each recipient thereto has first agreed, for the benefit of Borrower, to hold such information, reports and data in confidence on the ~~provisions of~~ terms set out in Section ~~17.9, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses~~12(i) hereof. (gd) ~~Any other provision in this Agreement notwithstanding~~Upon the reasonable request of either Agent or Borrower, each Lender will identify those to whom it has assigned or participated any ~~Lender may at any time create a security interest in, or pledge, all or any portion~~ part of its ~~rights under~~ Notes and ~~interest in this Agreement 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~~Commitment, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (provide the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 amounts so 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 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), 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 Term Loans 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 Registerparticipated. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Exco Resources Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may sell, transfer, negotiate or assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations hereunder (including all of ~~such Lender hereunder~~ its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the ~~extent that~~ Term Loans, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Revolving Loans, the Swing Loans, the Competitive Bid Loans and the Letters of Credit); provided, however, that (i)(A) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment shall AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment, (B) if any assignment shall be of the assigning Lender’s Stand-Alone Letter of Credit Commitment, such assignment shall cover the same percentage of such Lender’s interest in unpaid Stand-Alone Letter of Credit Obligations and Stand-Alone Letter of Credit Commitment, and (C) if any such assignment shall be of the assigning Lender’s Term Loans and Term Loan Commitment, such assignment shall cover the same percentage of such Lender’s Term Loans and Term Loan Commitment, (ii) the 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 Assignor’s entire interest) be less than (x) in the case of any Revolving Credit Commitments (or in the event that the Revolving Credit Commitments are terminated, the Revolving Loans), $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (y) in the case of any Term Loan, $2,500,000 or an integral multiple of $500,000 in excess thereof, and (z) in the case of any Stand-Alone Letter of Credit Commitment, $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the U.S. Borrower and the Administrative Agent ~~may continue~~ (in each case such consent not to ~~deal solely and directly with~~ be unreasonably withheld); or (B) if such assignment is being made to a Lender ~~in connection with~~ or an Affiliate or Approved Fund of such Lender, (iii) if such Eligible Assignee is not, prior to the ~~interest so assigned to an Assignee until (i) written notice~~ date of such assignment, ~~together with payment instructions~~a Lender or an Affiliate or Approved Fund of a Lender, ~~addresses, and related information with respect~~ such assignment shall be subject to the ~~Assignee, have been given to Borrower and~~ prior consent of the Administrative Agent ~~by such Lender~~ and the ~~Assignee~~U.S. Borrower (which consent shall not be unreasonably withheld or delayed), (iiiv) in the case of any assignment of any Revolving Loans or Revolving Credit Commitments, such assignment shall be subject to the prior consent of the Swing Loan Lender ~~and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b~~(which consent shall not be unreasonably withheld or delayed), and (~~iii~~v) ~~unless waived by Agent~~in the case of any assignment of any Stand-Alone Letter of Credit Commitments, such assignment shall be subject to the prior consent of the Issuers in respect of the Stand-Alone Letter of Credit Facility (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 12.2, the ~~assigning Lender~~ consent of the U.S. Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing. Any such assignment need not be ratable as among the Term Loan Facility and the Revolving Credit Facility or ~~Assignee has paid to Agent for Agent’s separate account a processing fee in~~ the ~~amount~~ Stand-Alone Letter of ~~$3,500~~Credit Facility. (b) ~~From~~ The parties to each such assignment shall execute and ~~after~~ deliver to the ~~date that Agent notifies~~ Administrative Agent, for its acceptance and recording, an Assignment and Acceptance, together with any Note (if the assigning ~~Lender (with~~ Lender’s Loans are evidenced by a ~~copy~~ Note) subject to ~~Borrower) that it has received an executed~~ such assignment. Upon the execution, delivery, acceptance and recording of any Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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~~ of assignments made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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~~ 2.18 (Substitution of the Assignee and the resulting adjustment of the Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.Section 12.1

Appears in 1 contract

Sources: Credit Agreement (FMC Corp)

Assignments and Participations. (a) ~~Any Lender may, with~~ This Agreement shall be binding upon and inure to the ~~prior written consent~~ benefit of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned,~~ the parties and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (~~their respective Successors and assigns; provided that ~~no written consent of Agent~~ the Borrower may not assign or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) otherwise transfer all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender part of its ~~receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender~~ rights or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document ~~furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy~~ without the prior written consent of ~~this Agreement, together with such other documents~~ the Agent 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 Agent, such assigning Lender or any other Lenderall Lenders, and ~~based on~~ any such ~~documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking~~ assignment or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required transfer purported to be ~~performed by it as a Lender~~made without such consent shall be ineffective. (d) 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (eb) Any Lender may at any time sell to ~~one~~ any of Lender’s Affiliates or ~~more~~ commercial ~~banks, financial institutions~~banks organized under the laws of the United States, or ~~other Persons~~ any state thereof, and having a combined capital and surplus of at least Five Hundred Million Dollars (a $500,000,000) (each, an “~~Participant~~Eligible Assignee”) ~~participating~~ participation interests in ~~all~~ its Loans and Commitment. Such sales may be made without the consent of the Agent, any other Lender or ~~any portion of its Obligations, its Commitment, and~~ the ~~other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents~~Borrower; provided, however, that the selling Lender retains the right to vote as a Lender hereunder in respect of the interest sold without being bound to obtain the consent of its participant or to exercise its rights in accordance with instructions received from its participant (except that the participant’s consent can be required for proposed changes to “money terms” including, without limitation, matters involving decrease in fees, interest rate spreads or principal, increase in commitments if the participant’s commitment is increased, or extension of the final maturity date). Any Lender may pledge or assign all or any part of its interest under the Loan Documents for security purposes to any Federal Reserve Bank. (c) Any Lender may assign or otherwise transfer to any Eligible Assignee all or any part of its interest under the Loan Documents pursuant to an assignment and assumption agreement in form and substance reasonably satisfactory to the Agent with the prior written consent of the Agent and, if no Event of Default shall have occurred and be continuing, the Borrower, (such consents not to be unreasonably withheld or delayed) but without the consent of the other Lenders, to any other Eligible Assignee; provided, however, that in either case no such assignment (as distinguished from the sale of a participation) other than an assignment of a Lender’s entire interest under the Loan Documents (i) shall be made in an amount less than Two Million Five Hundred Thousand Dollars ($2,500,000) nor (ii) shall be made if after giving effect to such assignment the ~~Originating~~ aggregate amount of the Loans and unused Commitment of the assigning Lender would be less than Five Million Dollars ($5,000,000); provided, further, that in connection with any assignment (as distinguished from the sale of a participation) the assigning Lender shall ~~remain~~ pay to the Agent a fee of Three Thousand Five Hundred Dollars ($3,500) for each proposed assignee that is not then a Lender or an affiliate thereof. The assignee of any permitted sale or assignment (including assignments for security and sales of participations) shall have the same rights and benefits against the Borrower under the Loan Documents (excepting however, in the case of sales of participations, the right to grant or withhold consents or otherwise vote in respect thereof) including the right of setoff, and in the case of any outright assignment (as distinguished from an assignment for security or the sale of a participation) the same obligations in respect thereof, as if such assignee were an original Lender. (d) Except to the extent otherwise required by the context of this Agreement, the word “Lender” ~~for all purposes of~~ where used in this Agreement and the other Loan Documents shall mean and ~~the Participant receiving the participating interest in the Obligations, the Commitments~~include any holder of a Note originally issued to a Lender hereunder, and each such holder shall be bound by and have the ~~other rights and interests~~ benefits 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) Borrower, 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, and (v) all amounts payable by Borrower hereunder shall be determined same as if such ~~Lender~~ holder 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~~ a signatory hereto. 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 consummation of any ~~Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under~~ outright assignment pursuant to this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register10.8, the assigning Lender, ~~on behalf of Borrower~~the Agent and the Borrower shall make appropriate arrangements so that, ~~shall maintain~~ if required, a ~~register comparable~~ new Note is issued 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 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 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)assignee. Any ~~participation~~ outright assignment of ~~such Registered Loan (~~a Lender’s interest under this Agreement to another Lender made in conformance with the terms of this Section 10.8 shall result in a corresponding adjustment to the selling and ~~the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register~~purchasing Lenders’ Commitments and Percentage Interest. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan Agreement (Cascade Corp)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrowers, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section ~~17.9(a)~~16.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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~~ following the occurrence of an Event of ~~Default~~Default as provided in Section 8.1, 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~16.7, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (SoftBrands, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrowers, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section 15.16(d) and Section 17.9, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Hudson Highland Group Inc)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the ~~prior written~~ consent of ~~Agent,~~ Administrative Entity (which consent of ~~Agent~~ Administrative Entity shall not be (x) required if an Event of Default has occurred and is continuing, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender), any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the ~~Commitments~~ Revolver Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender~~ Lender’s Revolver Commitment or ~~(y) a group~~ amount of ~~new Lenders~~Loans, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information including any documentation required pursuant to Section 2.23(e), (f) and (g) with respect to the Assignee, have been given to ~~Borrower~~ Administrative Entity and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to ~~Borrower~~ Administrative Entity and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee and the consent of Administrative Entity shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section ~~15 and Section 17.9(a). (c~~8.2(b) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 relating to any ~~other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect~~ period prior to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance effectiveness of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesassignment. (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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Ares Management Lp)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. Notwithstanding the foregoing, in no event shall ▇▇▇▇▇ Fargo Retail Finance LLC assign any of the Obligations, Revolving Commitment or its other rights and obligations hereunder and under the other Loan Documents held by it on the Closing Date without the prior written consent of the Borrower which consent shall not be unreasonably withheld and which consent shall not be required after the occurrence and during the continuance of an Event of Default. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 16 and Section ~~17.9(a)~~17.8 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ 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, Borrower, the Collections of ~~Borrower or its Subsidiaries~~any Credit Party, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.8, disclose all documents and information which it now or hereafter may have relating to Borrower 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~~ Agreement, including without limitation, 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,~~ 203.24 (and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law). (h) Agent, acting solely for this purpose as an agent of Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of each Lender, and the Revolving Commitments of, and principal amount of the Advances owing to, such Lender pursuant to the terms hereof. The entries in such register shall be conclusive, and Borrower, Agent (and Lenders may treat each Person whose name is recorded therein pursuant to the terms hereof 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 one or both of the Term Loans (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 each 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 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), 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 hereunder for all ~~other purposes~~purposes of this Agreement, notwithstanding notice to the contrary. ~~In the case of~~ Such register shall be available for inspection by Borrower and any ~~assignment by a Lender of all or any portion of its Term Loans 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~~ at any reasonable time upon reasonable prior notice to ~~the Register~~Agent. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan Agreement (Design Within Reach Inc)

Assignments and Participations. ~~(a) Any Lender may,~~ The Lenders will be permitted to assign loans and commitments under the Senior Facility with the ~~prior written~~ consent of ~~Agent~~the Borrower (not to be unreasonably withheld or delayed and as to which, ~~which~~ in the case of any term loan credit facility, the Borrower will be deemed to have consented 10 business days after any request for consent if the Borrower has not otherwise responded by such date); provided that such consent of ~~Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ the ~~prior written consent of Borrower, which consent of~~ Borrower shall not be ~~unreasonably withheld, delayed,~~ required (i) (A) if such assignment of a term loan is made to another Lender or ~~conditioned (provided that no written consent~~ an affiliate or approved fund of ~~Agent or Borrower shall be required in connection with an assignment to a Person that is~~ a Lender or ~~an Affiliate~~ (~~other than individuals~~B) ~~of a Lender, any Lender may assign and delegate to one or more assignees so long as~~ if such ~~prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion~~ assignment of the ~~Obligations, the Commitments and the other rights and obligations of such~~ Revolving Facility is made to another Lender ~~hereunder and~~ under the ~~other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender~~ Revolving Facility or an ~~Affiliate of any Lender~~ affiliate or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations approved fund of a Lender under the ~~Loan Documents, and~~ Revolving Facility or (ii) after the ~~assigning~~ occurrence and during the continuance of an event of default relating to payment default or bankruptcy. All assignments will also require the consent of the Agent (subject to exceptions consistent with the Documentation Precedent), the Swingline Lender ~~shall~~and the Issuing Bank, not to be unreasonably withheld or delayed. Each assignment will be in an amount of an integral multiple of not less than $5,000,000 and integral multiples of $1,000,000 in excess thereof. The Agent will receive a processing and recordation fee of $3,500, payable by the assignor and/or the assignee, with each assignment. The Lenders will be permitted to sell participations in loans and commitments subject to the ~~extent that~~ restrictions set forth herein, in the Commitment Letter and consistent with the Documentation Precedent. Voting rights ~~and obligations hereunder and under the other Loan Documents have been assigned by it pursuant~~ of participants (i) shall be limited to matters in respect of (a) increases in commitments of such participant, (b) reductions of principal, interest or fees payable to such ~~Assignment and Acceptance~~participant, relinquish its rights (except with respect to Section 10.3) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) ~~By executing and delivering an Assignment and Acceptance~~extensions of final maturity or interest or fee payment dates, scheduled amortization of the ~~assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided~~ loans or commitments in which 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, participant participates and (vid) ~~such Assignee agrees that it will perform~~ releases of all or substantially all of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt~~ value 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 Commitments arising therefrom. The 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 institutionsGuarantees, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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 and (ii) for clarification purposes, shall not include the right to vote on waivers of defaults or ~~guaranties~~ events of default. Notwithstanding the foregoing, assignments (~~except~~ and, to the extent ~~expressly provided herein or in any~~ the Disqualified Lender list is made available to all Lenders, participations) shall not be permitted to Disqualified Lenders (the list of which, with respect to bona fide competitors of the ~~Loan Documents~~Borrower identified by the Borrower, may be updated from time to time after the Closing Date with the consent of the Agent and will remain on file with the Agent and not subject to further disclosure); provided that the foregoing shall not apply retroactively to disqualify any parties that have previously acquired an assignment or participation interest in the Revolving Facility to the extent such party was not a Disqualified Lender at the time of the applicable assignment or participation, as the case may be; provided, further, that the Agent shall have no duties or responsibilities for monitoring or enforcing prohibitions on assignment or participation to Disqualified Lenders or Affiliated Lenders. Any assigning Lender shall, in connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee) ~~supporting~~ concurrently with its delivery of the ~~Obligations hereunder in which such Participant is participating, (D) postpone~~ same request to the ~~payment of,~~ Agent irrespective of whether or ~~reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver~~ not an event of default ~~interest),~~ relating to payment default or ~~(E) decreases the amount~~ bankruptcy has occurred and is continuing. No assignments of loans or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise commitments in respect of the ~~Obligations. No Participant shall have~~ Revolving Facility to 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~~ Sponsor or any ~~grant~~ of ~~a security interest in, or pledge of,~~ its ~~rights under~~ affiliates (including Holdings and ~~interest in this Agreement, a Lender may~~its subsidiaries) shall be permitted. Assignments shall not be deemed non-pro rata payments. Non-pro rata prepayments will be permitted to the extent required to permit “extension” transactions and “replacement” facility transactions (with existing and/or new Lenders), subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower 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 in favor of any Federal Reserve Bank in accordance with Regulation A customary restrictions for affiliates 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~~Sponsor. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Additional Initial Lender Agreement (Pomegranate Merger Sub, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of Agent, ~~which consent of Agent shall not be unreasonably withheld, delayed,~~ assign and delegate to one or ~~conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ more assignees (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender ~~or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate~~ to ~~one or more assignees so long as such prospective assignee is~~ an Eligible ~~Transferee~~ Transferee) (~~each~~each an "Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any part (but if in part, a ratable portion of its Revolving/Term Commitment and Bridge Commitment), of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum -83- 84 amount ~~(unless waived by Agent)~~ of $~~5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders~~5,000,000; PROVIDED, 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 assigned to all such new Lenders is at least $5,000,000); provided, howeverHOWEVER, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, ~~addresses,~~ addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and ~~Agent has notified the assigning Lender of its receipt thereof~~ Acceptance") in ~~accordance with Section 13.1(b),~~ form and substance satisfactory to Agent; and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~SECTION 11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to ~~Agent,~~ Agent by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of~~ each Assignee's making its processing fee payment under the ~~required processing fee, if applicable,~~ Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender ~~pro tanto~~PRO TANTO. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of its~~ the Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the ~~“Originating~~ "originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) the ~~Originating Lender shall remain a “~~originating Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the ~~Originating~~ originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent,~~ Borrower and ~~the Lenders~~ Agent shall continue to deal solely and directly with the ~~Originating~~ originating Lender in connection with the ~~Originating~~ originating Lender’s '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 sole and exclusive 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~~ a material portion 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),~~ Lender; or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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 shall only ~~shall~~ be derivative through the ~~Originating~~ originating Lender with whom such Participant ~~participates~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Telxon Corp)

Assignments and Participations. (a) ~~Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, ~~delayed~~delayed or conditioned, ~~or conditioned (provided that no written consent of Agent or Borrower~~ and shall not 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 individuals) of a Lender (an “Affiliated Lender”) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, so long as such Affiliated Lender, at the time of assignment, has the credit worthiness to satisfy its obligations under this Agreement, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliated Lender so long as such Affiliated Lender, at the time of assignment, has the credit worthiness to satisfy its obligations under this Agreement, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”; ~~provided, however,~~ provided that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $~~5,000,000~~ 10,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $~~5,000,000~~10,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) the Assignee delivers to Agent and Borrower certificates, documents or other evidence required pursuant to Section 16(c), (d) or (e), and (iv) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable~~ premiums, (v) the Participant delivers to ~~such Participant through such Lender~~Agent and Borrower certificates, documents or other evidence required pursuant to Section 16(c), (d) or (e), and (vvi) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~participation, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Actuate Corp)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, ~~which consent of Agent shall not be unreasonably withheld, delayed,~~ assign and delegate to one or ~~conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ more assignees (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender ~~or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate~~ to ~~one or more assignees so long as such prospective assignee is~~ an Eligible Transferee or in connection with the Closing Date Assignments) (~~each~~each an "Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the -------- Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except~~ provided that no such minimum amount shall ~~not apply to~~ be required in the case of an Eligible Transferee that qualifies as an "Eligible Transferee" under clause (xd) ~~an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of ~~any Lender or (y) a group~~ the definition of ~~new Lenders, 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 assigned to all such new Lenders is at least $5,000,000~~Eligible Transferee); provided, however, ~~that~~ that, except with -------- ------- respect to the Closing Date Assignments, Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, ~~addresses,~~ addresses and related information with respect to the Assignee, shall have been given to Borrower (for the benefit of the Obligors) and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ~~and Agent has notified~~ in the ~~assigning Lender~~ form of ~~its receipt thereof in accordance with Section 13.1(b),~~ Exhibit A-1; and (iii) ~~unless waived~~ other than with respect to the Closing Date ----------- Assignments or an assignment by ~~Agent~~an existing Lender to any Affiliate of such Lender, the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an a fully executed Assignment and Acceptance ~~and,~~ and payment (if applicable~~, payment~~ ) of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however~~and such assignment shall effect a novation among the Obligors, ~~that nothing contained herein shall release any assigning Lender from obligations that survive~~ the ~~termination of this Agreement~~assignor Lender, ~~including such assigning Lender’s obligations under Section 15~~ and ~~Section 17.9(a)~~the Assignee. (c) By executing and delivering an Assignment and Acceptance, the ~~assigning~~ assignor Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) other than as provided in such Assignment and Acceptance, such ~~assigning~~ assignor Lender makes no representation or warranty whatsoever and assumes no responsibility with respect to any statements, ~~warranties~~ warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, ~~sufficiency~~ sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii2) such ~~assigning~~ assignor Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ any Obligor or the performance or observance by ~~Borrower~~ any Obligor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon Agent, such ~~assigning~~ assignor 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of~~ each Assignee's making its processing fee payment under the ~~required processing fee,~~ Assignment and Acceptance (if applicable, ) and ~~delivery~~ receipt and acknowledgment by Agent of ~~notice to the assigning Lender pursuant to Section 13.1(b)~~such fully executed Assignment and Acceptance, 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 Commitments of the assignor Lender and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the ~~assigning~~ assignor Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons (a “"Participant”") participating interests in ~~all or any portion of its Obligations~~the Obligations owing to ----------- such Lender, ~~its~~ such Lender's Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~------------------ Documents (provided that no written consent of Agent shall be required in connection with any sale of such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent,~~ Borrower and ~~the Lenders~~ Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion of the Collateral, UK Sub Collateral, and Canadian Sub Collateral or 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~~ hereunder in which such Participant ~~through such Lender (other than a waiver of default interest),~~ is participating; or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or premiums ~~payable to~~ in respect of the Obligations hereunder in which such Participant ~~through such Lender,~~ is participating; or (F) subordinate the Liens of Agent for the benefit of the Lender Group to the Liens of any other creditor of any Obligor; and (v) 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~~ 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 shall 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, the Collateral, the UK Sub Collateral, the Canadian Sub 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. The provisions of this Section ------- 14.1(e) are solely for the benefit of Lender Group, and no Obligor shall have ------- any rights as a third party beneficiary of any of such provisions. (f) In connection with any such assignment or participation or proposed assignment or ~~participation or any grant of a security interest in~~participation, ~~or pledge of, its rights under and interest in this Agreement~~subject to Section 16.17(d), a Lender ~~may, subject~~ may ---------------- disclose to ~~the provisions of Section 17.9, disclose~~ a third party all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~any Borrower's business. (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 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~~(S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent (and Foothill, in its capacity as a ~~non-fiduciary agent on behalf of Borrower) shall maintain~~Lender, 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 one or both of the Term Loans (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 each 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 (~~one hand, 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~~ of Ableco Finance LLC or its Affiliates, as an Assignee, on the other hand, have executed and delivered the Closing Date Assignments as of the Closing Date, pursuant to which Agent, Foothill, 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), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered its capacity 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 Loans to an Affiliate of such Lender or a Related Fund of such~~ Lender, and ~~which assignment is not recorded in~~ such Assignees have agreed, among other things, to certain voting arrangements relative to matters requiring the ~~Register~~approval of the Lender Group. The rights and duties of Agent, ~~the assigning~~ of Foothill as a Lender, ~~on behalf~~ and of ~~Borrower~~any other Assignee of Foothill as a Lender, ~~shall maintain a register comparable~~ are subject to the ~~Register~~Closing Date Assignments. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (System Software Associates Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrowers, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section ~~17.9(a)~~16.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~16.7, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (TRC Companies Inc /De/)

Assignments and Participations. ~~(a) Any~~ 1. 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 ~~may~~and their respective successors and permitted 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 ~~Agent~~each Lender and any such assignment without the Lenders' prior written consent shall be null and void. 2. Subject to the conditions set forth in clause (c) below, ~~which~~ each Lender may assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to: (a) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and 137907439v16 (b) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that (A) the consent of any Agent shall not be unreasonably withheld, ~~delayed~~conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or ~~conditioned~~deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, ~~and~~ conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default ~~exists~~has occurred and is continuing, ~~with~~ the ~~prior~~ Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written ~~consent of Borrower, which consent of Borrower~~ request therefor and (3) shall not be ~~unreasonably withheld~~required during the continuance of an Event of Default; provided, ~~delayed~~further, ~~or conditioned (provided~~ that no written consent of ~~Agent~~ the Agents or the Administrative Borrower shall be required (x) in connection with an any assignment ~~to a Person that is~~ by a Lender to any Agent or ~~an Affiliate (other than individuals) of a~~ any Lender, any ~~Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or~~ Affiliate of ~~a Loan Party shall be permitted to become an Assignee~~any Agent or any Lender or any Related Fund of any Agent or any Lender or (y) if such assignment is in connection with any merger, amalgamation, consolidation, sale, transfer, or other disposition of all or any substantial portion of the ~~Obligations,~~ business or loan portfolio of any Lender. 3. Assignments shall be subject to the ~~Commitments and~~ following additional conditions: (a) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the ~~other rights and obligations~~ remainder of such ~~Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent~~Lender's Commitment) ~~of $5,000,000~~ (except such minimum amount shall not apply to an assignment by a Lender to (xA) an ~~assignment~~ Agent or ~~delegation by any Lender to any other Lender or~~ a Lender, an Affiliate of ~~any~~ an Agent or a Lender or a Related Fund of an Agent or a Lender or (yB) a group of new Lenders, each of ~~which~~ whom is an Affiliate or Related Fund of each other ~~or a Related Fund of such new Lender~~ to the extent ~~that~~ the aggregate amount to be assigned to all such new Lenders is at least $~~5,000,000~~1,000,000 or a multiple of $100,000 in excess thereof)~~; provided~~; (b) The parties to each such assignment shall execute and deliver to the Administrative Agent (and the Revolving Agent, ~~however~~if applicable), ~~that Borrower~~ for its acceptance, an Assignment and ~~Agent may continue~~ Acceptance, and such parties shall deliver to ~~deal solely~~ the Administrative Agent, for the benefit of the Administrative Agent, a processing and ~~directly with~~ recordation fee of $5,000 (except the payment of such ~~Lender~~ fee shall not be required in connection with ~~the interest so assigned~~ an assignment by a Lender to an ~~Assignee until~~ Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender), any forms and certificates required pursuant to Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and (ic) No such assignment shall be made to any Defaulting Lender, any Loan Party, any Permitted Holder (or other direct or indirect equity holder of the Parent), any holder of Subordinated Indebtedness or any of their respective Affiliates, in each case, without the prior written ~~notice~~ consent of the Administrative Agent. 4. Upon such ~~assignment~~execution, ~~together with payment instructions~~delivery and acceptance, ~~addresses,~~ from and ~~related information with respect to~~ after the ~~Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an~~ effective date specified in each Assignment and Acceptance and ~~Agent has notified~~ recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the 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 and (B) the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder ~~shall be a party hereto and~~shall, 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 under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant 137907439v16 to such Assignment and Acceptance, relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future~~ its 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 ~~Agreement and the other Loan Documents~~Agreement, such Lender shall cease to be a party ~~hereto and thereto~~hereto)~~; provided, however, that nothing contained herein~~ . No assignment shall ~~release any assigning Lender from obligations that survive the termination~~ be effective for purposes of this ~~Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Agreement unless it has been recorded on the Register as provided in this Section. ~~(c)~~ 5. By executing and delivering an Assignment and Acceptance, the assigning Lender ~~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~~ 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 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 ~~Borrower~~ any Loan Party or any of its Subsidiaries or the performance or observance by ~~Borrower~~ any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such ~~Assignee~~ assignee confirms that it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with 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 ~~Agent~~the assigning Lender, ~~such assigning Lender~~ any Agent 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,~~ Agreement and the other Loan Documents; (v) such ~~Assignee~~ assignee appoints and authorizes ~~Agent~~ the Agents to take such ~~actions~~ action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~Agent,~~ the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such ~~Assignee~~ 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. ~~(d) Immediately upon Agent’s receipt~~ 6. The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at 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 Commitments of, and the principal amount of the Loans (and stated interest thereon) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders 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 and any Lender at any reasonable time and from time to time upon reasonable prior written notice. 7. Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, the processing and recordation fee of $5,000, any forms and certificates required ~~processing fee~~pursuant to Section 2.09(e) and all other know-your-customer documentation and information requested by the applicable Agent, and subject to any consent required from any 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 137907439v16 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 Revolving Agent, if applicable, a copy of the fully executed Assignment and ~~delivery~~ Acceptance. 8. If any assignment by any Lender holding any promissory note is made after the issuance of ~~notice to~~ such promissory note, the assigning Lender ~~pursuant~~ shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such promissory note to ~~Section 13.1(b~~the Administrative Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Administrative Borrower shall issue and deliver a new promissory note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender. 9. In the event that any Lender sells participations in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of such Lender’s rights and obligations under the Loans owning to it, 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 and address of each participant and their respective successors and assigns, and the principal amounts (and stated interest thereon) of each Participant’s interest in the Loans or other obligations under the Loan Documents that is the subject of the participation (the ”Participant Register”). The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Participant Register as a Lender hereunder for all purposes of this Agreement. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, neither the Administrative Agent (in its capacity as Administrative Agent) nor the Revolving Agent (in its capacity as Revolving Agent) shall have any responsibility for maintaining a Participant Register. 10. Any Foreign Lender who purchases or is assigned or participates in any portion of the rights and obligations under 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantocomply with Section 2.09(e). ~~(e) Any~~ 11. Each Lender may ~~at any time~~ sell participations to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons (a “Participant”) participating interests~~ entities in or to all or ~~any~~ a portion of its ~~Obligations, its Commitment, and the other~~ rights and ~~interests of that Lender (the “Originating Lender”) hereunder and~~ obligations under ~~the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of~~ this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the ~~Participant receiving the participating interest in the Obligations~~Loans made by it); provided, ~~the Commitments~~that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) 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~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ~~(iii) Borrower, Agent,~~ and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s 's rights and obligations under this Agreement and the other Loan Documents; and (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 , (ivB) ~~no Lender shall transfer~~ action directly effecting an extension of the due dates or ~~grant any participating~~ a decrease in the rate of interest payable on the Loans or the fees payable under ~~which the Participant has the right to approve any amendment to~~this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any ~~consent or waiver with respect to,~~ Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document~~, except~~ ). The Loan Parties agree that each participant shall be entitled to the ~~extent such amendment to, or consent or waiver~~ benefits 137907439v16 of Section 2.09 and Section 2.10 of this Agreement with respect to ~~this Agreement or of~~ its participation in any ~~other Loan Document would (A) extend the final maturity date~~ portion of the ~~Obligations hereunder in which such Participant is participating, (B) reduce~~ Commitments and 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, and (v) 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 in amounts owing under this Agreement Loans to the same extent as if ~~the amount of its participating interest~~ it were ~~owing directly to it as~~ a Lender and had acquired its interest by assignment pursuant to Section 12.07(b) (it being understood that the documentation required under ~~this Agreement. The rights of any Participant only~~ Section 2.09(e) 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~~ delivered to the ~~other Lenders~~participating Lender, ~~Agent~~and if additional amounts are required to be paid pursuant to Section 2.09, to the Administrative Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower and its Subsidiaries and their respective businesses. (g) 12. Any ~~other provision in this Agreement notwithstanding, any~~ Lender may at any time ~~create~~ pledge or assign a security interest ~~in, or pledge,~~ in all or any portion of its rights under ~~and interest in~~ this Agreement ~~in favor~~ to secure obligations of such Lender, including any ~~Federal Reserve Bank in accordance with Regulation A of the~~ pledge or assignment to secure obligations to a Federal Reserve Bank or ~~U.S. Treasury Regulation 31 CFR §203.24, and~~ loans made to such ~~Federal Reserve Bank may enforce~~ Lender pursuant to a securitization or similar credit facility (a “Securitization”); provided that no such pledge or ~~security interest in~~ assignment shall release such Lender from any ~~manner permitted under applicable law. (h) Agent (~~of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a ~~non-fiduciary agent on behalf of Borrower)~~ party hereto. The Loan Parties shall ~~maintain~~cooperate with such Lender and its Affiliates to effect the Securitization including, ~~or cause to~~ without limitation, by providing such information as may be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (and the principal amount thereof and stated interest thereon) held reasonably requested by such Lender ~~(each, a “Registered Loan”). Other than~~ in connection with ~~an assignment by a Lender of all or any portion~~ the rating of its ~~portion of each Term Loan to an Affiliate of such Lender~~ Loans 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 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), 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 Term Loans 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 RegisterSecuritization. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Financing Agreement (Mondee Holdings, Inc.)

Assignments and Participations. 12.5.1 Borrowers may not assign any of its rights or obligations under this Agreement without the prior consent of all Lenders and Agent. Any attempted or purported assignment in contravention of the preceding sentence shall be null and void. 12.5.2 Each Lender may (~~a) Any Lender may,~~ with the ~~prior written~~ consent of Borrowers, unless such assignment is to another Lender or a subsidiary, sister company or parent of any Lender, in which case Borrowers' consent shall not be required) assign all or any part of its Loans and its Commitments (but only with the consent of Agent and only pro rata among all of the various Loans and Commitments to the Borrowers), together with, in any such case, its related rights, remedies, powers and privileges under the Loan Documents; provided that (i) any such -------- partial assignment shall be in an amount at least equal to $10,000,000 and the assigning Lender shall have a retained interest at least equal to $10,000,000; (iii) each such assignment by a Lender of its Loans and Commitments shall be made in such manner so that the same portion of its Loans and Commitments is assigned to the respective assignee; and (iv) the assigning Lender or the respective assignee shall have paid to Agent an assignment fee of $5,000. Upon execution and delivery by the assignee to Borrowers and Agent of an instrument in writing pursuant to which such assignee agrees to become a "Lender" under this Agreement (if not already a Lender) having the Commitment or Commitments and Loans specified in such instrument, and upon the consent of Agent, ~~which consent of Agent~~ the assignee shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) 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 Agent), the obligations, 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~~ benefits of a Lender under the Loan ~~Documents~~Documents holding the Commitment or Commitments and Loans assigned to it (in addition to the Commitment or Commitments and Loans, if any, theretofore held by such assignee) and ~~(ii)~~ the assigning Lender shall, to the extent ~~that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to~~ of such ~~Assignment and Acceptance~~assignment, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future obligations under this Agreement (~~the Commitment or Commitments so assigned. Any Lender may sell participations in its Loans 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 extentCommitments, but only on terms acceptable to Agent in its reasonable discretion. 12.5.3 In addition to the ~~extent~~assignments and participations permitted under the foregoing provisions of this Section 12.5, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any any Lender may ~~at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in~~ assign and pledge all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue Loans 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 in favor of any Federal Reserve Bank ~~in accordance with~~ as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve ~~Bank or U.S. Treasury Regulation 31 CFR §203.24,~~ System and any Operating Circular issued by such Federal Reserve ~~Bank may enforce~~ Bank. No such ~~pledge or security interest in any manner permitted~~ assignment shall release the assigning Lender from its obligations under ~~applicable law~~the Loan Documents. ~~(h) 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~~ 12.5.4 A Lender as the registered owner of one or both of the Term Loans (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 may furnish any information concerning Borrowers or any ~~portion~~ of its ~~portion of each Term Loan to an Affiliate~~ Subsidiaries in the possession 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time ~~as Borrower~~ to assignees and participants (including prospective assignees and participants). 12.5.5 Notwithstanding anything in this Section 12.5 to the contrary, no Lender may ~~reasonably request~~assign or participate to Borrowers or any of its Affiliates or Subsidiaries any interest in any Obligation or Commitment (or any related rights, remedies, powers or privileges) without the prior written consent of each Lender and Agent.

Appears in 1 contract

Sources: Loan and Security Agreement (Restoration Hardware Inc)

Assignments and Participations. (a) ~~Any Lender may~~Except as expressly permitted in the Operative Documents, ~~with~~ the Borrower may not assign or transfer its rights or delegate its obligations hereunder or under any other Operative Document without the prior written consent of ~~Agent~~Sublessee, ~~which~~ Ex-Im Bank and the Guaranteed Lender. (b) Subject in all events to compliance with all terms and conditions of the Ex-Im Bank Guarantee (including, without limitation, any requirement for Ex-Im Bank's prior written consent thereto) and with Applicable Laws, the Guaranteed Lender may assign, transfer, pledge, sell or grant participations in or otherwise dispose of ~~Agent shall not be unreasonably withheld, delayed,~~ all or ~~conditioned,~~ any part of its interest in all or any part of the Borrower's Indebtedness under this Guaranteed Loan Agreement and ~~so long as no Event of Default exists, with~~ the Note to one or more other Permitted Institutions without the prior written consent of ~~Borrower~~the Borrower or the Sublessee (collectively, ~~which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (~~a "DISPOSITION OF INDEBTEDNESS") provided that ~~no written consent of Agent or Borrower shall be required~~ (other than in connection with an assignment to Ex-Im Bank) if, as at the date of such assignment or transfer, such assignment or transfer would subject the Borrower to any greater obligation or liability under Section _____ of the ______________Agreement or under the ______________ Indemnity Agreement or under any other Operative Document than it would have been under on such date if no such assignment had then taken place, then unless such assignment was made to mitigate or avoid the requirement for payment of additional amounts or increased costs under the ______________ Indemnity Agreement or any illegality, the assignee shall not be entitled to receive any greater payment under the ______________ Indemnity Agreement or under Section _____ of the ______________Agreement or any other Operative Document than the assignor would have been entitled to receive with respect to the rights assigned or transferred at the time such assignment or transfer is entered into. Furthermore, without limiting the generality of the foregoing, the Guaranteed Lender may sell, assign, transfer and set over to a ~~Person that is~~ trustee for the holders of the Guaranteed Lender's secured indebtedness or other securities (the "______________ TRUSTEE") the Loan and the Note for the purpose of creating a security interest therein in favor of the ______________ Trustee, and the ______________ Trustee may, in such event, exercise any and all rights and remedies which would otherwise be available to the Guaranteed Lender ~~or an Affiliate (other than individuals)~~ in connection with this Guaranteed Loan Agreement and the enforcement thereof in relation to the Loan and the Note. The Borrower shall, at the request of a the Guaranteed Lender, execute and deliver to the Guaranteed Lender, or to any party that the Guaranteed Lender may ~~assign~~ designate, any such further instruments as may be necessary or reasonably requested by the Guaranteed Lender to give full force and ~~delegate~~ effect to ~~one~~ a Disposition of Indebtedness by the Guaranteed Lender. (c) Without limiting the provisions of Section _____ of the Participation Agreement, all non-public information provided to the Security Trustee and the Guaranteed [Form of Guaranteed Loan Agreement] Lender by the Borrower or ~~more assignees so long~~ Sublessee shall be treated as ~~such prospective assignee is an Eligible Transferee (each, an “Assignee”~~confidential by the Security Trustee and the Guaranteed Lender; provided, however, that ~~no Loan Party~~ the Guaranteed Lender may furnish any information concerning the Borrower or ~~Affiliate~~ Sublessee in the possession of ~~a Loan Party shall~~ the Guaranteed Lender from time to time to assignees and participants (including prospective assignees and participants), provided such Persons have agreed to maintain the confidentiality as provided in Section 14 of the Participation Agreement of all such non-public information so furnished and any such information may be ~~permitted~~ disclosed as required by Applicable Laws. (d) If the Guaranteed Lender (other than Ex-Im Bank) wishes to ~~become an Assignee)~~ assign or transfer all or any ~~portion~~ of its rights, benefits and obligations hereunder as contemplated in Section 10.6(b), then such assignment or transfer may be effected (i) in the case of an assignment or transfer to a Person (other than Ex-Im Bank) on the Transfer Date specified in the relevant Transfer Certificate or (ii) in the case of a transfer or assignment to Ex-Im Bank as a result of a demand under the terms of the ~~Obligations~~Ex-Im Bank Guarantee, on the ~~Commitments~~ date of such transfer. To the extent that pursuant to such Transfer Certificate and the ~~other~~ provisions thereof the rights and obligations of ~~such~~ the Guaranteed Lender hereunder and under the other ~~Loan Documents~~Operative Documents (to which the Guaranteed Lender is party) are validly transferred to and assumed by the assignee or transferee, ~~in a minimum amount (unless waived by Agent) of $5,000,000 (except~~ such ~~minimum amount shall not apply to (x) an assignment or delegation by any~~ Guaranteed Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and released from further 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 any future 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 and the other Loan Operative Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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~~ accrued rights owing 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 Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty party hereunder and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantothereunder. (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 the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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 No Guaranteed Lender (other than ~~a waiver of default interest)~~Ex-Im Bank, 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, and (v) 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 any of its ~~participating interest in amounts owing under~~ transferees or any further transferees) may assign or transfer (it being understood and agreed that a participation permitted by Section 10.6 shall not constitute an assignment or transfer) any of its rights or obligations hereunder as contemplated by this ~~Agreement~~ Section 10.6 unless contemporaneously therewith it assigns or transfers to the same ~~extent as if the amount~~ assignee or transferee all or a corresponding part of its ~~participating interest were owing directly to it as a Lender~~ rights, benefits and obligations under ~~this Agreement. The rights~~ each 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~~ Operative Documents ~~or any direct~~ (except for rights ~~as to~~ and benefits which the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions documents expressly provide will be retained by the ~~Lenders among themselves~~transferee) to which such Guaranteed Lender is party. (f) In Any assigning or transferring Guaranteed Lender (other than Ex-Im Bank and any subsequent transferees) shall be solely responsible for all of its reasonable costs and expenses for any assignment, transfer or participation under this Section 10.6 including, without limitation, all costs in connection with any amendment to or supplement to, or registration of or re-registration of the Security Documents and any legal fees and expenses relating thereto (or may procure that any transferee or participant pay such costs and expenses), unless 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 transfer was 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)~~ Borrower or ~~transferee(s), one or more new registered notes in~~ Sublessee to mitigate the ~~same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale~~ imposition 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 Term Loans 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 RegisterClaims. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan Agreement (Copa Holdings, S.A.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrowers, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section ~~17.9(a)~~16.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Parent or Borrowers or the performance or observance by ~~Borrower~~ Parent or Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Parent, Borrowers, the Collections of ~~Borrower~~ Parent or its Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~16.7, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Parent 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Bookham, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of Agent, ~~which consent of Agent shall not be unreasonably withheld, delayed,~~ assign and delegate to one or ~~conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ more assignees (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender ~~or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate~~ to ~~one or more assignees so long as such prospective assignee is~~ an Eligible ~~Transferee~~ Transferee) (~~each~~each an "Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part, of the Obligations, the ~~Commitments~~ Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $~~5,000,000~~ 1,000,000 (~~except~~ provided that no such minimum amount shall ~~not apply to (x)~~ be required in the case of an ~~assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which~~ Assignee that is an Affiliate of ~~each other or~~ a ~~Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Lender); , provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, shall have been given to ~~Borrower~~ Borrowers and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to ~~Borrower~~ Borrowers and Agent an a fully executed Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b),~~ Acceptance; and (iii) ~~unless waived~~ other than with respect to an assignment by ~~Agent~~an existing Lender to any Affiliate of such Lender, the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~2,500; provided, further, that the written consent of the Borrowers shall be required for an Assignment and Acceptance to be effective if, but only if, the proposed Assignee has been a lender to a Borrower at any time during the three years prior to the Closing Date unless the assignor Lender is selling all or a substantial portion of its loan portfolio to such proposed Assignee, in which case no such written consent of the Borrowers shall be required. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an a fully executed Assignment and Acceptance ~~and,~~ and payment (if applicable~~, payment~~ ) of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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~~ warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, ~~sufficiency~~ sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon Agent, such assigning ~~Lender~~ 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to ~~Agent,~~ Agent by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of~~ each Assignee's making its processing fee payment under the ~~required processing fee, if applicable,~~ Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments of the assignor Lender and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of its Obligations~~the Obligations owing to such Lender, ~~its~~ such Lender's Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent,~~ Borrowers and ~~the Lenders~~ Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive 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~~ a material portion 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~~ hereunder in which such Participant ~~through such Lender (other than a waiver of default interest), or~~ is participating; (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or premiums ~~payable to~~ in respect of the Obligations hereunder in which such Participant ~~through such Lender,~~ is participating; or (F) subordinate the Liens of Agent for the benefit of the Lender Group to the Liens of any other creditor of any Borrower; and (v) all amounts payable by ~~Borrower~~ Borrowers hereunder shall be determined as if such Originating 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~~ 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 shall 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, ~~Borrower~~Borrowers, the ~~Collections of Borrower or its Subsidiaries~~Collections, the Collateral, or otherwise in respect of the ~~Obligations~~Term Loans. No Participant shall have the right to participate directly in the making of decisions by ~~the~~ Lenders among themselves. The provisions of this Section 16.1(e) are solely for the benefit of Lender Group, and no Borrower shall have any rights as a third party beneficiary of any of such provisions. (f) In connection with any such assignment or participation or proposed assignment or ~~participation or any grant of a security interest in~~participation, ~~or pledge of, its rights under and interest in this Agreement~~subject to Section 18.16(d), a Lender ~~may, subject~~ may disclose to ~~the provisions of Section 17.9, disclose~~ a third party all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~any Borrower's business. (g) ~~Any~~ Notwithstanding any other provision in this ~~Agreement notwithstanding~~Agreement, 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 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~~C.F.R. ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (General Datacomm Industries Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing ~~fee~~fee (if required), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Loan Parties and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section~~ Article 15 and Section ~~17.9(a)~~17.9 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ Loan Parties or the performance or observance by ~~Borrower~~ Loan Parties of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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)~~13.1, 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “"Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~Loan Parties, 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 Originating 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ any Loan Party 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, ~~Borrower~~Loan Parties, the Collections of ~~Borrower~~ Loan Parties or ~~its~~ their Subsidiaries, 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~~participation, 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 ~~Borrower~~ Loan Parties and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Plato Learning Inc)

Assignments and Participations. ~~(a) Any Lender may~~After the Closing Date, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall First-Lien Lenders will be permitted to ~~become an Assignee) all or any portion~~ assign to eligible assignees loans under the First-Lien Facility with the consent of the ~~Obligations, the Commitments~~ Borrower and the ~~other rights and obligations of~~ First-Lien Administrative Agent (in each case such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 consent (except with respect to ~~Section 10.3~~assignments to competitors of the Borrower) and be released from any future 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 and the other Loan Documents, such Lender shall cease not to be ~~a party hereto and thereto~~unreasonably withheld or delayed); ~~provided, however,~~ provided that ~~nothing contained herein~~ (A) no consent of the Borrower shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: be required (i) after the occurrence and during the continuance of a Specified Event of Default for an assignment to a person other than ~~as provided in such Assignment and Acceptance, such assigning~~ a Disqualified 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 Loan Document furnished pursuant hereto, (ii) if such ~~assigning~~ assignment is an assignment to another First-Lien Lender, an affiliate of a First-Lien Lender ~~makes~~ or an approved fund (provided that no ~~representation or warranty~~ assignee described in this clause (A) shall be entitled to receive any greater payment under the cost and ~~assumes no responsibility~~ yield protection provisions than the assignor would have been entitled to receive with respect to the ~~financial condition~~ rights assigned unless such assignment is made with the consent of ~~Borrower or~~ the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental theretoBorrower), and (viB) no consent of the First-Lien Administrative Agent shall be required if such ~~Assignee agrees that it~~ assignment is an assignment to another First-Lien Lender, an affiliate of a First-Lien Lender or an approved fund. Each assignment (other than to another First-Lien Lender, an affiliate of a First-Lien Lender or an approved fund) will ~~perform~~ be in an amount of an integral multiple of $1,000,000 (or lesser amounts, if agreed between the Borrower and the First-Lien Administrative Agent) or, if less, all of ~~the obligations which by the terms of this Agreement are required to be performed by it as a~~ such First-Lien Lender~~. (d) Immediately upon Agent~~’s ~~receipt~~ remaining loans and commitments of the ~~required~~ applicable class. The First-Lien Administrative Agent shall receive a processing ~~fee~~and recordation fee of $3,500 for each assignment (it being understood that such recordation fee shall not apply to any assignments by any of the Initial Lenders or any of their affiliates). For any assignment for which Borrower consent is required, ~~if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement~~ such consent shall be deemed to have been given if the Borrower has not responded within ten (10) business days after written request for such consent. The First-Lien Lenders will be ~~amended~~ permitted to sell participations in loans and commitments (other than to Disqualified Lenders) without restriction in accordance with applicable law. Participants will have the same benefits as the selling First-Lien Lenders would have (and will be limited to the ~~extent~~amount of such benefits) with regard to yield protection and increased costs, ~~but only~~ subject to ~~the extent, necessary~~ customary limitations and restrictions; provided that no participant shall be entitled to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at receive 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 the other rights and interests of that Lender (the “Originating Lender”) hereunder and greater payment under the ~~other Loan Documents; provided, however, that (i)~~ cost and yield protection provisions than the ~~Originating~~ applicable First-Lien 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 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) Borrower, Agent, and the Lenders shall continue would have been entitled 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 receive with respect to ~~this Agreement~~ the participation sold to such participant, unless the sale of the participation to such participant is made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed). Voting rights of participants shall be limited to matters in respect of (a) increases in commitments participated to such participant, (b) reductions of principal, interest or fees, (c) extensions of final maturity or the due date of any ~~other Loan Document would~~ amortization, interest or fee payment and (Ad) ~~extend~~ releases, except as otherwise contemplated by the ~~final maturity date~~ First-Lien Documentation, 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~~ guarantees of all or substantially all First-Lien Guarantees or 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, and (v) 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 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 AgreementCollateral. 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Any assignment or participation by a First-Lien Lender (knowingly, with respect to participations) without the Borrower’s consent to a Disqualified Lender shall not be permitted, provided that upon inquiry by any First-Lien Lender to the First-Lien Administrative Agent as to whether a specified potential assignee or ~~proposed assignment~~ prospective participant is on the list of Disqualified Lenders, the First-Lien Administrative Agent shall be permitted to disclose to such First-Lien Lender whether such specific potential assignee or ~~participation or any grant~~ prospective participant is on the list of ~~a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may~~Disqualified Lenders. In addition, subject to the provisions ~~of Section 17.9~~below, ~~disclose all documents~~ non-pro rata distributions and ~~information which it now~~ commitment reductions will be permitted in connection with loan buy-back or ~~hereafter may have relating~~ similar programs on terms no less favorable to the Borrower than the Precedent First-Lien Credit Agreement. Assignments to, and purchases by, the Borrower and its ~~Subsidiaries~~ affiliates will be permitted without any consent, including through open-market purchases on the terms provided below (but in any event no less favorable to the Borrower than the Precedent First-Lien Credit Agreement). Assignments to Warburg Pincus LLC and JLL Partners and their respective ~~businesses.~~ affiliates (gto the extent that Warburg Pincus LLC, JLL Partners and their respective affiliates constitute an “Affiliate” as defined in a manner consistent with the First-Lien Documentation Principles) ~~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~~ than the Borrower and its rights under and interest in this Agreement 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. (hsubsidiaries) 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 one or both of the Term Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a an “~~Registered Loan~~Affiliated Lender”~~). Other than in connection with an assignment by a Lender of all or any portion of its portion of each 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~~ permitted subject 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.following limitations:

Appears in 1 contract

Sources: Securities Purchase Agreement (Builders FirstSource, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent~~Agent and, ~~which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ so long as no Event of Default ~~exists~~has occurred and is continuing, upon 5 Business Days’ notice to and with the ~~prior~~ written consent of ~~Borrower, which consent of~~ Administrative Borrower ~~shall~~ (not to be unreasonably withheld~~, delayed, or conditioned~~ ) (provided that no written consent of Agent or ~~Borrower~~ Borrowers shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000 and (iv) such Assignee has delivered any applicable documentation relating to exemption from withholding taxes provided for in Section 16.11. Anything contained herein to the contrary notwithstanding, the consent of Agent or Borrowers shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) ~~Borrower~~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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and no Borrower shall have any rights as third party of any such provisions. (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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~Borrowers or Borrowers’ business. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"ASSIGNEE") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $~~5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders~~5,000,000; PROVIDED, 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 assigned to all such new Lenders is at least $5,000,000); provided, howeverHOWEVER, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, (A) Agent agrees for the sole benefit of Borrower that, so long as no Event of Default has occurred and is continuing, Agent, in its capacity as a Lender, shall retain a Revolver Commitment of not less than the lesser of (1) 50.1% of the Revolver Commitments, or (2) $20,000,001, and (B) the consent of Agent and Borrower shall not be required, the payment of any fees shall not be required, and, in the case of Agent, in its capacity as a Lender, the foregoing minimum retained Revolver Commitment shall not be applicable, 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 a Lender. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~SECTION 11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender ~~pro tanto~~PRO TANTO. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a ~~“Participant”~~"PARTICIPANT") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Revolver Commitment, and the other rights and interests of that Lender (the ~~“Originating Lender”~~"ORIGINATING LENDER") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); ~~provided~~PROVIDED, ~~however~~HOWEVER, 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 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) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.a

Appears in 1 contract

Sources: Loan and Security Agreement (Etoys Inc)

Assignments and Participations. The Lenders will be permitted to assign loans under the Second Lien Facility (other than to (a) ~~Any~~ a natural person, (b) subject to the following paragraph, the Borrower and its affiliates or (c) to the extent they have been identified to the relevant Lender ~~may~~in writing prior to such assignment, Disqualified Institutions (as defined in the Commitment Letter) with the ~~prior written~~ consent of ~~Agent, which~~ the Borrower (such consent not to be unreasonably withheld or delayed); provided that such consent of ~~Agent~~ the Borrower (x) shall not be ~~unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ required (i) if such assignment is made to another Lender under the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender Second Lien Facility or an ~~Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one~~ affiliate or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate approved fund of any such Lender or (ii) after the occurrence and during the continuance of an event of default and (y) ~~a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender~~ shall be deemed to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to if the Borrower ~~and Agent by~~ has not responded within five business days of a request for such ~~Lender and~~ consent. All assignments will require the ~~Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified~~ consent of the ~~assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by~~ Agent, ~~the assigning Lender~~ not to be unreasonably withheld or ~~Assignee has paid to Agent for Agent~~delayed. Each assignment will be in an amount of an integral multiple of $1,000,000 or, if less, all of such Lender’s ~~separate account a processing~~ remaining loans. Assignments will be by novation. An assignment fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder 3,500 shall be ~~a party hereto and,~~ paid by the respective assignor or assignee to the ~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance,~~ Agent. The Agent shall not be ~~a “Lender”~~ responsible for monitoring compliance with the Disqualified Lender list and shall have ~~the rights and obligations~~ no liability for non-compliance by any Lender. Assignments of ~~a Lender~~ loans under the ~~Loan Documents, and (ii) the assigning Lender shall,~~ Second Lien Facility to the ~~extent that rights and obligations hereunder and under~~ Borrower shall be permitted subject to 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as followsfollowing limitations: (i) ~~other than as provided in such Assignment~~ Holdings, the Borrower and ~~Acceptance, such assigning Lender makes no representation~~ its subsidiaries may not purchase loans under the Second Lien Facility at any time while they or ~~warranty and assumes no responsibility~~ any of their respective directors or officers is aware of any material non-public information with respect to ~~any statements~~the business of Holdings, ~~warranties or representations made in or in connection with this Agreement or~~ the ~~execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement~~ Borrower or any ~~other Loan Document furnished pursuant hereto~~of their subsidiaries at the time of such purchase that has not been disclosed to Lenders generally, (ii) ~~such assigning Lender makes no representation~~ any offer to purchase or ~~warranty and assumes no responsibility with respect to~~ take by assignment any loans under the ~~financial condition of~~ Second Lien Facility by Holdings, the Borrower or ~~the performance or observance by Borrower of any of~~ its ~~obligations under this Agreement or any other Loan Document furnished pursuant hereto,~~ subsidiaries shall have been made to all Lenders pro rata (with buyback mechanics to be agreed); (iii) ~~such Assignee confirms that it~~ no default or event of default has ~~received a copy of this Agreement, together with such other documents~~ occurred and ~~information as it has deemed appropriate to make its own credit analysis~~ is continuing; and ~~decision to enter into such Assignment and Acceptance,~~ (iv) the loans purchased are immediately cancelled. The Lenders will be permitted to sell participations in loans (other than to a natural person or to the Borrower and its affiliates) without restriction. Voting rights of participants shall be limited to matters in respect of (a) increases in commitments of such Assignee will, independently and without reliance upon 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 Agreementparticipant, (vb) reductions or forgiveness of principal, interest or fees payable to such ~~Assignee appoints~~ participant, (c) extensions of final maturity or scheduled amortization of, or the date for payment of interest or fees on, the loans or commitments in which such participant participates and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) ~~Immediately upon Agent’s receipt~~ releases 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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~~ value of the ~~Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of~~Guarantees, or ~~reduce the amount of, the interest~~ all or ~~fees payable to such Participant through such Lender (other than a waiver~~ substantially all 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Stock Purchase Agreement (XPO Logistics, Inc.)

Assignments and Participations. (a) ~~Any~~ At any time after the ------------------------------ Closing Date each Lender may, with the prior ~~written~~ consent of ~~Agent~~the Agent and (so long as no Default or Event of Default has occurred and is continuing) the Borrower, which ~~consent of Agent~~ consents shall not be unreasonably withheld, ~~delayed~~assign to one or more banks or financial institutions all or a portion of its rights and obligations under the Loan Documents (including, without limitation, all or a portion of any Note payable to its order); provided, that (i) each such -------- assignment with respect to the Revolving Credit Facility shall be of a constant and not a varying percentage of all of the assigning Lender's rights and obligations under the Revolving Credit Facility, Letter of Credit Facility and Swing Line Facility, (ii) for each assignment involving the issuance and transfer of a Note, the assigning Lender shall execute the applicable Assignment and Acceptance and the Borrower hereby agrees to execute a replacement Note or Notes to give effect to the assignment, (iii) in any case the amount of Revolving Credit Commitment and Letter of Credit Commitment, or ~~conditioned~~the amount of Term Loan A Commitment or Term Loan B Commitment, as applicable, which shall be assigned is a minimum of $5,000,000 and, if greater, an amount which is an integral multiple of $1,000,000, (iv) such assignee shall have an office located in the United States, and ~~so long as~~ (v) no ~~Event of Default exists, with the prior written~~ consent of ~~Borrower, which consent of~~ the Borrower ~~shall not be unreasonably withheld, delayed,~~ or ~~conditioned (provided that no written consent of~~ the Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ by a Lender to another Lender or to an ~~Affiliate (other than individuals)~~ affiliate of a any Lender. Upon such execution, ~~any Lender may assign~~ delivery, approval and ~~delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each~~acceptance, ~~an “Assignee”; provided~~from and after the effective date specified in each Assignment and Acceptance, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under any such Note have been assigned or negotiated to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender ~~under the Loan Documents,~~ hereunder and a holder of such Note and (iiy) the ~~assigning Lender~~ assignor thereunder shall, to the extent that rights and obligations hereunder ~~and~~ or under ~~the other Loan Documents~~ such Note have been assigned or negotiated by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future~~ its obligations under this ~~Agreement (and in~~ Agreement. Any Lender who makes an assignment shall pay to the ~~case~~ Agent a one-time administrative fee of ~~an Assignment and Acceptance covering all or~~ $3,500 which fee shall not be reimbursed by the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)Borrower. (cb) 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~~ the assignment made under such Assignment and ~~Acceptance,~~ Acceptance is made under such ~~assigning Lender makes no representation or warranty~~ Assignment 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 Loan Document furnished pursuant hereto, Acceptance without recourse; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ any Credit Party or the performance or observance by ~~Borrower of~~ any Credit Party of its obligations under ~~this Agreement~~ any Loan Document or any other ~~Loan Document~~ instrument or 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 delivered pursuant to Section ------- 8.6(a) or Section 9.1, as the case may be, 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 Acceptance, ; (iv) such ~~Assignee~~ assignee will, independently and without reliance upon the Agent, NCMI or such assigning Lender or any other ~~Lender,~~ Lender and based on such documents and information as it shall deem appropriate at the time, 110 continue to make its own credit decisions in taking or not taking action under ~~this Agreement,~~ any Loan Document; (v) such ~~Assignee~~ assignee appoints and authorizes the Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under ~~this Agreement and~~ the ~~other~~ Loan Documents as are delegated to ~~Agent,~~ the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, ; and (vi) such ~~Assignee~~ 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 and a holder of such Notes. (c) The Agent shall maintain at one of its offices in Charlotte, North Carolina a copy of each Lender Assignment and Acceptance delivered to it in accordance with the terms of Section 13.1(a) above and a register for --------------- the recordation of the identity of the principal amount, type and Interest Period of each Loan outstanding hereunder, the names, addresses and the Revolving Credit Commitments, the Term Loan A Commitments and the Term Loan B Commitments of the Lenders pursuant to the terms hereof from time to time (the "Register"). The Agent will make reasonable efforts to maintain the -------- accuracy of the Register and to promptly update the Register from time to time, as necessary. The entries in the Register shall be conclusive in the absence of manifest error and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and each Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) ~~Immediately upon Agent’s~~ Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, the ~~required processing fee, if applicable, and delivery of~~ Agent shall give prompt notice thereof 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoBorrower. (e) ~~Any~~ Nothing herein shall prohibit any Lender from pledging or assigning, without notice to or consent of the Borrower and without the payment of the administrative fee referred to in Section 13.1(a), any Note --------------- to any Federal Reserve Bank in accordance with applicable law. (f) Each Lender may sell participations at ~~any time sell~~ its expense to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons (a “Participant”) participating interests in~~ entities as to all or ~~any~~ a portion of its ~~Obligations, its Commitment, and the other~~ rights and ~~interests of that Lender (the “Originating Lender”) hereunder and~~ obligations under ~~the other Loan Documents~~this Agreement; provided~~, however~~, that (i) ~~the Originating Lender shall remain a “~~such Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s 's -------- obligations under this Agreement shall remain unchanged, (ii) ~~the Originating~~ such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) ~~Borrower, Agent, and~~ such Lender shall remain the ~~Lenders shall continue~~ holder of any Note issued to ~~deal solely and directly with~~ it for the ~~Originating Lender in connection with the Originating Lender’s rights and obligations under~~ purpose of this ~~Agreement and the other Loan Documents~~Agreement, (iv) ~~no Lender~~ such participations shall ~~transfer or grant any participating interest under~~ be in a minimum amount of $5,000,000 and, if greater, an amount 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 is an integral multiple 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$1,000,000, and ~~(v) 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 include 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 allocable portion of its rights under and interest in this Agreement 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.'s Participation,

Appears in 1 contract

Sources: Credit Agreement (Walter Industries Inc /New/)

Assignments and Participations. (a) ~~Any~~ 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 ~~may~~and their respective successors and permitted 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 ~~Agent~~each Lender and any such assignment without the Lenders’ prior written consent shall be null and void. (b) Subject to the conditions set forth in clause (c) below, ~~which consent~~ each Lender may assign to one or more (x) Lenders, (y) Affiliates or Related Funds of ~~Agent shall not be unreasonably withheld~~any Lender or (z) commercial banks, ~~delayed~~insurance companies, or ~~conditioned~~finance companies, ~~and~~ financial institutions, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than to a natural person or, so long as no Event of Default ~~exists~~has occurred and is continuing pursuant to Section 9.01(a), (f) or (g), a Competitor) all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Loan Commitment, Term Loan Commitment, Revolving Loans and/or any Term Loan made by it with the ~~prior~~ written consent of ~~Borrower~~(i) in the case of Term Loans, ~~which~~ the Collateral Agent (such consent of ~~Borrower shall~~ the Collateral Agent not to be unreasonably withheld, ~~delayed~~delayed or conditioned), (ii) in the case of Revolving Loans, the Collateral Agent and the Servicing Agent (which such consent of the Collateral Agent and Servicing Agent not to be unreasonably withheld, delayed or ~~conditioned~~ conditioned) and (iii) so long as Specified Event of Default has occurred and is continuing, the Administrative Borrower (such consent of the Administrative Borrower not to be unreasonably withheld, delayed or conditioned); provided that the Administrative Borrower will be deemed to have consented if the Administrative Borrower has not responded within 10 Business Days of written request; provided, further, that no written consent of the Collateral Agent, the Servicing Agent or the Administrative Borrower shall be required in connection with any assignment by a Lender to an ~~assignment to~~ Agent or a ~~Person that is~~ Lender, an Affiliate of an Agent or a Lender or a Related Fund of an ~~Affiliate (other than individuals) of~~ Agent or a Lender~~, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee~~ . (~~each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party~~ c) Assignments shall be ~~permitted~~ subject to ~~become~~ the following additional conditions: (i) Each such assignment shall be in an ~~Assignee) all~~ amount which is at least $5,000,000 or ~~any portion~~ a multiple of $1,000,000 in excess thereof (or the ~~Obligations, the Commitments and the other rights and obligations~~ remainder of such ~~Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent~~Lender’s Commitment) ~~of $5,000,000~~ (except such minimum amount shall not apply to an assignment by a Lender to (xA) an ~~assignment~~ Agent or ~~delegation by any Lender to any other Lender or~~ a Lender, an Affiliate of ~~any~~ an Agent or a Lender or a Related Fund of an Agent or a Lender or (yB) a group of new Lenders, each of ~~which~~ whom is an Affiliate or Related Fund of each other ~~or a Related Fund of such new Lender~~ to the extent ~~that~~ the aggregate amount to be assigned to all such new Lenders is at least $~~5,000,000~~5,000,000 or a multiple of $1,000,000 in excess thereof); and (ii) Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver to the Administrative Agent (and the Collateral Agent and the Servicing Agent, if applicable), for its acceptance, an Assignment and Acceptance, a joinder to the Agreement Among Lenders signed by the applicable assignee(s), together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent an IRS Form W-9 and all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act, along with, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) for the benefit of the Administrative Agent. Notwithstanding anything to the contrary contained in this Section 12.07(c)(ii), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (a “Related Party Assignment”); provided, however, that ~~Borrower~~ (A) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender ~~in connection~~ until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (B) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the ~~interest so assigned~~ Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(g), (C) the failure of such assigning Lender to deliver an ~~Assignee until (i) written notice~~ Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect 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,~~ (iiD) ~~such Lender and its Assignee have delivered to Borrower and Agent~~ an Assignment and Acceptance ~~and Agent has notified~~ between the assigning Lender and an Affiliate of ~~its receipt thereof~~ such Lender or a Related Fund of such Lender shall be effective as of the date specified in ~~accordance with~~ such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section ~~13.1(b), and~~ 12.07(f) below; and (iii) ~~unless waived by Agent~~No such assignment shall be made to (A) any Loan Party, any shareholder or other equity holder of the ~~assigning~~ Administrative Borrower or any of their respective Affiliates (other than to, in each case, TCW), (B) any Defaulting Lender or ~~Assignee~~ any of its Affiliates, or (C) so long as no Event of Default has ~~paid~~ occurred and is continuing pursuant to ~~Agent for Agent’s separate account~~ Section 9.01(a), (f) or (g), any Person who, upon becoming a ~~processing fee in the amount of $3,500~~Lender hereunder, would constitute a Competitor. (bd) ~~From~~ Upon such execution, delivery and acceptance, from and after the date ~~that~~ recorded in the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Administrative Agent ~~notifies~~ (or such shorter period as shall be agreed to by the ~~assigning Lender~~ Administrative Agent and the parties to such assignment), (~~with~~ A) the assignee thereunder shall become a ~~copy to Borrower) that it has received an executed Assignment and Acceptance~~ “Lender” hereunder and, ~~if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto 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, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents,~~ Acceptance and (iiB) the assigning Lender 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 ~~any future~~ its 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 ~~Agreement and the other Loan Documents~~Agreement, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(ahereto). (ce) By executing and delivering an Assignment and Acceptance, the assigning Lender ~~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~~ 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 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 ~~Borrower~~ any Loan Party or any of its Subsidiaries or the performance or observance by ~~Borrower~~ any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) so long as no Event of Default has occurred and is continuing pursuant to Section 9.01(a), (f) or (g), the assignee represents and warrants that it is not a Competitor and that it is legally authorized to enter into such ~~Assignee~~ Assignment and Acceptance ; (iv) such assignee confirms that it has received a copy of this ~~Agreement~~Agreement and the other Loan Documents, together with 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, ; (ivv) such ~~Assignee~~ assignee will, independently and without reliance upon ~~Agent~~the assigning Lender, ~~such assigning Lender~~ any Agent 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,~~ Agreement and the other Loan Documents; (vvi) such ~~Assignee~~ assignee appoints and authorizes ~~Agent~~ the Agents to take such ~~actions~~ action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~Agent,~~ the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vivii) such ~~Assignee~~ 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. (df) ~~Immediately upon Agent’s receipt~~ The Administrative Agent shall, acting solely for this purpose as a non- fiduciary agent of the ~~required processing fee~~Borrowers, ~~if applicable~~maintain, ~~and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed~~ or cause to be ~~amended~~ maintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the ~~extent, but only to~~ “Register”) for the ~~extent, necessary to reflect the addition~~ recordation of the ~~Assignee~~ names and addresses of the Lenders and the ~~resulting adjustment of the~~ Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitmentof, and the ~~other rights~~ principal amount of the Loans (and ~~interests of that Lender~~ stated interest thereon) (the “~~Originating Lender~~Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder ~~and under the other Loan Documents; provided, however, 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 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) Borrower, 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, and (v) 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 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~~ Register shall be ~~derivative through~~ available for inspection by the ~~Originating~~ Administrative Borrower and any Lender ~~with whom such Participant participates~~ at any reasonable time and ~~no Participant shall have any rights under this Agreement or~~ from time to time upon reasonable prior written notice. In the ~~other Loan Documents or any direct rights~~ case of an assignment pursuant to the last sentence of Section 12.07(c)(ii) as to which an Assignment and Acceptance is not delivered to the ~~other Lenders,~~ Administrative Agent, ~~Borrower~~the assigning Lender shall, the Collections of Borrower or its Subsidiaries, 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 acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower) shall~~ the Borrowers, maintain, or cause to be maintained, a register (the “Related Party Register”) comparable to the Register on ~~which it enters the name and address of each Lender as the registered owner of one or both~~ behalf of the ~~Term~~ Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. This Section 12.07(f) shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and any successor provisions). Any Revolving PIK Amount capitalized in accordance with Section 2.04(d) of this Agreement that is not fungible with the applicable Term Loan outstanding on the date of such capitalization and any Delayed Draw Term Loan that is not fungible with the applicable Term Loan outstanding on the date of the draw, in each case, for U.S. federal income tax purposes shall be tracked separately from such Term Loan on the Register. (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 ~~amount thereof~~ 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 ~~stated interest thereon~~assignee in conjunction with delivery of the assignment to the Administrative Agent) ~~held by such Lender (each~~and provide to the Collateral Agent and the Servicing Agent, if applicable, a ~~“Registered Loan”). Other than in connection with an assignment by a Lender~~ copy of ~~all or any portion of its portion of each Term Loan to an Affiliate of such Lender or a Related Fund of such Lender~~ the fully executed Assignment and Acceptance. (ih) a 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~~) and (ii) any~~ ). 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), 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 Term Loans 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 any Lender sells participations in ~~the~~ a Registered Loan, such ~~Lender~~Lender shall, acting for this purpose as a non-fiduciary agent on behalf of ~~Borrower~~the Borrowers, ~~shall maintain (~~maintain, or cause to be maintained) , a ~~register~~ 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~~ the Registered ~~Loans~~ Loan that is the subject ~~to such participations)~~ of the participation (the “Participant Register”). A Registered Loan (and the ~~Registered Note~~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 Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitments, Loans, or its other Obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other Obligation is in registered form under Section 5f. 103-1(c) of the United States Treasury Regulations. This Section shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and any successor provisions). Any Revolving PIK Amount capitalized in accordance with Section 2.04(d) of this Agreement that is not fungible with the applicable Term Loan outstanding on the date of such capitalization and any Delayed Draw Term Loan that is not fungible with the applicable Term Loan outstanding on the date of the draw, in each case, for U.S. federal income tax purposes shall be tracked separately from such Term Loan on the Participant Register. (j) ~~Agent~~ Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall ~~make~~ comply with Section 2.09(d). (k) Each Lender may sell participations to one or more banks or other entities (other than to a ~~copy~~ natural person or, so long as no Event of Default has occurred and is continuing pursuant to Section 9.01(a), (f) or (g), a Competitor) in or to all or a portion of its rights and obligations under this Agreement and the ~~Register~~ other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and ~~each~~ the other Loan Documents shall remain unchanged; (ii) such Lender shall ~~make a copy~~ remain solely responsible to the other parties hereto for the performance of ~~its Participant Register~~ such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in ~~the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.~~connection with such Lender’s rig

Appears in 1 contract

Sources: Financing Agreement (TCW Group Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may sell, transfer, negotiate or assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations hereunder (including all of ~~such Lender hereunder~~ its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the ~~extent that~~ Term Loans, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that ~~Borrower~~ (i)(A) if any such assignment shall be of the assigning Lender's Revolving Credit Outstandings and ~~Agent may continue to deal solely and directly with~~ Revolving Credit Commitments, such ~~Lender in connection with~~ assignment shall cover the ~~interest so assigned to an Assignee until (i) written notice~~ same percentage of such ~~assignment~~Lender's Revolving Credit Outstandings and Revolving Credit Commitment (B) if any such assignment shall be of the assigning Lender's Optional Currency Loans and Optional Currency Commitments, ~~together with payment instructions~~such assignment shall cover the same percentage of such Lender's Optional Currency Loans and Optional Currency Commitments and (C) if any such assignment shall be of the assigning Lender's Term Loans and Term Loan Commitment, ~~addresses,~~ such assignment shall cover the same percentage of such Lender's Term Loans and ~~related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee~~Term Loan Commitment, (ii) the aggregate amount being assigned pursuant to each such ~~Lender and its Assignee have delivered to Borrower and Agent an~~ 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 $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the applicable Administrative Agent ~~has notified the assigning~~ or (B) if such assignment is being made to a Lender or an Affiliate or Approved Fund of ~~its receipt thereof in accordance with Section 13.1(b)~~such Lender, and (iii) ~~unless waived by~~ 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 the prior consent of the First Lien Agent and the Required Revolving Lenders in the case of an assignment with respect to a Revolving Loan and the Borrower (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing. Any such assignment need not be ratable as among the Facilities. (b) The parties to each such assignment shall execute and deliver to the applicable Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. In addition, any Lender or Eligible Assignee ~~has paid~~ assuming a Revolving Credit Commitment in connection with a Facility Increase shall execute an assumption agreement in accordance with Section 2.19 (Facility Increase). Upon the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.18 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the applicable Administrative Agent ~~for Agent’s separate account a processing~~ from the assignee of an assignment fee in the amount of $~~3,500. (b) From~~ 3,500 from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) the ~~Assignee~~ 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, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender, and if such Lender ~~under the Loan Documents~~were an Issuer, of such Issuer hereunder and thereunder, and (ii) the ~~assigning Lender~~ assignor thereunder shall, to the extent that rights and obligations ~~hereunder and~~ under ~~the other Loan Documents~~ this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except ~~with respect to Section 10.3~~for those surviving the payment in full of the Obligations) and be released from ~~any future~~ its obligations under ~~this Agreement~~ the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (~~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 Agreement and~~ the ~~other~~ Loan Documents, such Lender shall cease to be a party ~~hereto~~ hereto). (c) The applicable Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and ~~thereto~~Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers and the Commitments of and principal amount of the Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the "Register"); . Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Agents, the Lenders and the Issuers shall treat each Person whose name is recorded in the Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Notwithstanding anything to the contrary contained in clause (b) above, the Loans (including the Notes evidencing such Loans), any Revolving Loans deemed to have been made pursuant to Section 2.3(e) (Swing Loans), Reimbursement Obligations and undivided participation interests in Swing Loans purchased pursuant to Section 2.3(f) (Swing Loans) are registered obligations and the right, title, and interest of the Lenders and the Issuers, as the case may be, and their assignees in and to such Loans, deemed Revolving Loans, Reimbursement Obligations and undivided participation interests in Swing Loans, as the case may be, shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender's or a registered assignee's right title and interest in and to the related Loan, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 11.2 shall be construed so that the Loans, deemed Revolving Loans, Reimbursement Obligations and undivided participation interests in Swing 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 Code and any related regulations (or any successor provisions of the Code or such regulations). Solely for purposes of this clause (d) and for tax purposes only, each Administrative Agent shall act as the Borrower's agent for purposes of maintaining the Register and such notations of transfer in the Register, subject to the standard of care set forth in the first sentence of Section 10.2(b) (Agent's Reliance, Etc.). (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the applicable Administrative Agent shall, if such Assignment and Acceptance has been completed, (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, if requested by such assignee, execute and deliver to the applicable Administrative Agent new Notes to the order of such assignee in an amount equal to the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B-1 (Form of Revolving Credit Note) or Exhibit B-2 (Form of Term Loan Note), as applicable. (f) In addition to the other assignment rights provided in this Section 11.2, each Lender may (i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder, provided, however, that nothing ~~contained~~ herein shall ~~release~~ constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any ~~assigning Lender from obligations that survive~~ indemnity or other Obligation (other than the ~~termination~~ making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement), and (ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the applicable Administrative Agent, (y) any trustee for the benefit of the holders of such ~~assigning~~ Lender’s 's Securities and (z) to any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above; and provided, further, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above. Each party hereto acknowledges and agrees 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 debt of any such Special Purpose Vehicle, such party shall not institute against, or join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). In addition, each Lender granting a Special Purpose Vehicle the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder, (i) shall keep a register, meeting the requirements of Treasury Regulations Section 5f.103-1(c), of each Special Purpose Vehicle which has funded all or any part of any Loans that such Lender would otherwise be obligated to make pursuant to this Agreement, specifying such Special Purpose Vehicle's entitlement to payments of principal and interest with respect to such Loans and (ii) shall collect, prior to the time such Special Purpose Vehicle receives payments with respect to such funded Loans, from each such Special Purpose Vehicle the appropriate forms, certificates and statements described in Section 2.17 (Taxes) (and updated as required by Section 2.17 (Taxes)) as if such Special Purpose Vehicle were a Lender under Section ~~15 and Section 17.9(a~~2.17 (Taxes). (cg) ~~By executing and delivering an Assignment and Acceptance, the assigning~~ Each Lender ~~thereunder and the Assignee thereunder confirm~~ may sell participations 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~~ one or ~~warranty and assumes no responsibility with respect to any statements, warranties or representations made~~ more Persons in or ~~in connection with this Agreement~~ to all or a portion of its rights and obligations under the ~~execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other~~ Loan ~~Document furnished pursuant hereto,~~ Documents (~~ii) such assigning Lender makes no representation or warranty~~ including all its rights and ~~assumes no responsibility~~ obligations with respect to the ~~financial condition~~ Term Loans, Revolving Loans and Letters of ~~Borrower~~ Credit). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or ~~the performance or observance by Borrower~~ other modifications of any provision of ~~its obligations~~ any Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights such Lender may have under ~~this Agreement~~ or ~~any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy~~ in respect of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents ~~as are delegated~~ (including the right to ~~Agent~~enforce the obligations of the Loan Parties), by except if any such amendment, waiver or other modification or consent would (i) reduce the ~~terms hereof and thereof~~amount, ~~together with~~ or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such ~~powers as are reasonably incidental thereto~~participant under the Loan Documents, ~~and~~ to which such participant would otherwise be entitled under such participation or (viii) ~~such Assignee agrees that it will perform~~ result in the release of all or substantially all of the ~~obligations which by~~ Collateral other than in accordance with Section 10.8(b) (Concerning the ~~terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt~~ Collateral and the Collateral Documents). In the event of the ~~required processing fee~~sale of any participation by any Lender, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce (w) 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 the other rights and interests of that Lender (the “Originating Lender~~”) hereunder and~~ 's obligations under the ~~other Loan Documents; provided, however, 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 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, (iix) ~~the Originating~~ such Lender shall remain solely responsible to the other parties for the performance of such obligations, (~~iii~~y) such Lender shall remain the holder of such Obligations for all purposes of this Agreement and (z) the Borrower, ~~Agent,~~ the Agents and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s 's rights and obligations under this ~~Agreement and the other Loan Documents, (iv) no Lender~~ Agreement. Each participant 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 be entitled to the ~~extent~~ benefits of Sections 2.16 (Capital Adequacy) and 2.17 (Taxes) and of Section 2.15(d) (Illegality) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.16 (Capital Adequacy), 2.17 (Taxes) or Section 2.15(d) (Illegality) to the participants in the rights and obligations of any Lender (together with such ~~amendment to~~Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold. In addition, ~~or consent or waiver~~ each Lender selling a participation to a participant under this Section 11.2(g) (i) shall keep a register, meeting the requirements of Treasury Regulations Section 5f.103-1(c), of each participant, specifying such participant's entitlement to payments of principal and interest 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 Lenderparticipation, and (vii) ~~all amounts payable~~ shall collect, prior to the time such participant receives payments with respect to such participations, from each such participant the appropriate forms, certificates and statements described in Section 2.17 (Taxes) (and updated as required by ~~Borrower hereunder shall be determined~~ Section 2.17 (Taxes)) 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 participant were ~~owing directly to it as~~ a Lender under ~~this Agreement. The~~ Section 2.17 (Taxes). (h) Any Issuer may at any time assign its rights of and obligations hereunder to any ~~Participant only shall be derivative through the Originating~~ other Lender ~~with whom such Participant participates~~ by an instrument in form and ~~no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as~~ substance satisfactory to the ~~other Lenders, Agent,~~ Borrower, the ~~Collections of Borrower or its Subsidiaries~~First Lien Agent, 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~~ Issuer and ~~interest in this Agreement, a Lender may~~such Lender, subject to the provisions of under Section ~~17.9, disclose all documents and information which it now or hereafter may have~~ 11.2(c) relating to ~~Borrower and its Subsidiaries and their respective businesses. (g) Any other provision~~ notations of transfer in ~~this Agreement notwithstanding,~~ the Register. If 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 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. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause Issuer ceases to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 hereunder 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 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), 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 virtue of any assignment ~~by a Lender~~ made pursuant to this Section 11.2, then, as of ~~all or any portion of its Term Loans to an Affiliate~~ the effective date of such ~~Lender or a Related Fund~~ cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.5 (Letters of Credit) shall terminate and such ~~Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf~~ Issuer shall be an Issuer hereunder only with respect to outstanding Letters of ~~Borrower, shall maintain a register comparable~~ Credit issued prior to ~~the Register~~such date. (i) In For purposes of this Section 11.2, with respect to each Letter of Credit, if an Issuer transfer its rights with respect to the ~~event that~~ Borrower's Reimbursement Obligation with respect to a ~~Lender sells participations~~ Letter of Credit, such Issuer shall give notice of such transfer to the First Lien Agent for notation 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Hli Operating Co Inc)

Assignments and Participations. (a) ~~Any~~ Except as provided in SECTION 14.1(h), any Lender may, with the ~~prior~~ written ~~consent of Agent, which~~ --------------- consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"ASSIGNEE") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)10,000,000; provided, however, that Borrower -------- ------- and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~SECTION ------- 11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a ~~“Participant”~~"PARTICIPANT") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the ~~“Originating Lender”~~"ORIGINATING LENDER") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 designated assignee(s) or transferee(s). Prior to the ~~registration~~ occurrence of ~~assignment or sale~~ an Event of ~~any Registered Loan (and the registered note~~Default, ~~if any evidencing the same), Borrower shall treat the Person~~ Foothill in ~~whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered~~ its capacity 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 Loans 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 at all times 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 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) at least 66 2/3% 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 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 Registeroutstanding Obligations. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Energy Corp of America)

Assignments and Participations. (a) ~~Any Lender may~~The Bank shall have the right at any time, with the prior written consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ the ~~prior written consent of~~ Borrower, ~~which consent of Borrower shall not be unreasonably withheld~~to sell, ~~delayed~~assign, transfer or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) negotiate all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender part of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The Working Capital 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, insurance companies, savings and loan associations, savings banks or other financial institutions, pension funds or mutual funds or other ~~Persons~~ accredited investors ("Eligible Assignees"); provided that prior to receiving any confidential or other material information regarding the Borrower or the transactions contemplated by this Amended and Restated Loan Agreement, any Eligible Assignee shall have entered into a ~~“Participant”) participating interests~~ Confidentiality Agreement in ~~all or any portion of its Obligations~~form and substance satisfactory to the Borrower, ~~its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents;~~ provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligationsfurther, the ~~Commitments, and the other rights and interests~~ Bank shall at all times retain at least sixty percent (60%) of the ~~Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents~~ Working Capital Commitment 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) Borrower, 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 will retain the right to ~~approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to~~ administer 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 Working Capital Commitment and 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) Agent (as a non-fiduciary agent Instruments 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 one or both of the Term Loans (~~itself 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 each 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 Eligible Assignees which acquire interests 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), 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 contraryworking capital Commitment. In the case of any ~~assignment by~~ sale, assignment, transfer or negotiation of all or part of the Working Capital Commitment authorized under this Section 10, the assignee, transferee or recipient shall have, to the extent of such sale, assignment, transfer or negotiation, the same rights, benefits and obligations as it would if it were a ~~Lender~~ Bank hereunder, including, without limitation (i) the right to approve or disapprove actions which, in accordance with the terms hereof, require the approval of the Bank, and (ii) the obligation to fund Working Capital Loans directly to the Borrower pursuant to Section 2 hereof. (b) The Bank may sell participations in all or any part of the Working Capital Commitment to one or more Eligible Assignees with the prior written consent of the Borrower; provided that (i) the Borrower hereby consents to the sale of participation interests in the Working Capital Commitment to SunTrust Bank; (ii) any such sale shall not, without the consent of the Borrower, require the Borrower to file a registration statement with the Securities and Exchange Commission or apply to qualify the Amended and Restated Working Capital Line of Credit Note under the blue sky law of any state; (iii) the holder of any such participation, other than an Affiliate of the Bank, shall not be entitled to require the Bank to take or omit to take any action hereunder, subject to the rights of each holder of any such participation under each and every participation agreement to which the Bank and such holder is a party; and (iv) the Bank shall at all times retain at least sixty percent (60%) of the Working Capital Commitment and will retain the right to administer the Working Capital Commitment and the Loan Instruments on behalf of itself and the Eligible Assignees which acquire interests in the Working Capital Commitment. For purposes of Section 9.2 hereof, the Borrower hereby acknowledges and agrees that any sale of any participation interest in the Working Capital Commitment will give rise to a direct obligation of the Borrower to the participant and the participant shall be considered to be a "Bank" hereunder. (c) Notwithstanding the foregoing provisions of this Section 10, the Bank may at any time sell, assign, transfer, or negotiate all or any part of the Working Capital Commitment to any Affiliate of the Bank; provided that an Affiliate to whom such disposition has been made shall not be considered a "Bank" for purposes of this Amended and Restated Loan Agreement other than for purposes of Section 9.2 hereof, provided further that the Borrower shall not incur any additional expenses solely as a result of such sale, assignment, transfer or negotiation. (d) The Bank shall not, as between the Borrower and the Bank, be relieved of any of its obligations hereunder as a result of any granting of participations in all or any part of the Working Capital Commitment. The Bank shall, as between the Borrower and the Bank, be relieved of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of all or any portion of its Term Loans 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 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) part of the ~~portion of such Registered Loans that is subject to such participations~~Working Capital Commitment made in accordance with Section 10(a) (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 Registerhereof. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan Agreement (Kentucky Electric Steel Inc /De/)

Assignments and Participations. (a) ~~Any Lender may~~None of Guarantor, ~~with~~ Pledgor or Seller shall sell, assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties under this Agreement or any other Repurchase Document without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent shall not be unreasonably withheld~~Seller, ~~delayed~~Pledgor, Sponsor, Manager or ~~conditioned~~Guarantor, and at Buyer’s sole cost and expense, sell participations to any Eligible Assignee (other than a natural person or Seller, Sponsor, Pledgor, any Intermediate Entity, Guarantor or any of their respective Affiliates) (a “Participant”) in all or any portion of Buyer’s rights and/or obligations under the Repurchase Documents; provided that (x) if a monetary or material non-monetary Default or any an Event of Default has occurred and is continuing, Buyer may sell participations to any Person at any time without consent, notice or restriction of any kind, other than the requirements set forth in clause (iv) below, and (y) so long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing: (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (ii) Buyer shall remain solely responsible to Seller for the performance of such obligations, (iii) Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents, (iv) each Participant agrees to be bound by the confidentiality provisions set forth in Section 18.09, and (v) provided that, so long as no Event of Default exists, Buyer shall retain ultimate decision-making authority under the Repurchase Documents. So long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing, no Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the ~~prior written consent~~ extent that the Repurchase Price or Price Differential of ~~Borrower~~any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, ~~which consent of Borrower~~ including the requirements under Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.07(c), provided that such Participant shall not be ~~unreasonably withheld~~entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been entitled to receive, ~~delayed~~except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by a Governmental Authority or compliance by Buyer or such Participant with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over Buyer or such Participant, in each case made or ~~conditioned~~ issued after the Participant acquired the applicable participation. To the extent permitted by Requirements of Law, each Participant shall also be entitled to the benefits of Sections 10.02(i) and 18.16 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.07(c). (~~provided that no written~~ c) Buyer may at any time, without the consent of ~~Agent~~ Seller, Pledgor, Sponsor, Manager or ~~Borrower shall be required in connection with an assignment~~ Guarantor but upon notice to ~~a Person that is a Lender or an Affiliate (other than individuals) of a Lender~~Seller, ~~any Lender may~~ and at Buyer’s sole cost and expense, sell and assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of all of the ~~Obligations, the Commitments and the other~~ rights and obligations of ~~such Lender hereunder and~~ Buyer under the ~~other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender~~ Repurchase Documents to any ~~other Lender~~ Eligible Assignee proposed by Buyer; provided that if a monetary or ~~an Affiliate~~ material non-monetary Default or any Event of Default has occurred and is continuing, Buyer may enter into any such sale and assignments with any Person at any time without consent, notice or restriction of any ~~Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of~~ kind. Each such ~~new Lender~~ assignment shall be made pursuant to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit F (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the Assignee thereunder~~ each such assignee shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the related assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.07(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.07(b). (d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller and shall be at no cost to Seller. (e) Buyer, at Buyer’s sole cost and expense, shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents to any ~~statements~~Eligible Assignee so long as, ~~warranties~~ prior to the occurrence and during the continuance of a monetary or ~~representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement~~ material non-monetary Default or any ~~other Loan Document furnished pursuant hereto~~Event of Default, ~~(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect~~ Buyer shall remain solely responsible to ~~the financial condition of Borrower or~~ Seller for the performance ~~or observance~~ by ~~Borrower of any~~ Buyer of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Repurchase Documents; provided, however, 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 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) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the assignees that become Parties hereto and, with respect to each such assignees, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The Register shall be available for inspection by the Parties at any reasonable time and from time to time upon reasonable prior notice. (g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register. (j) Agent shall make a copy~~ Register as the owner of the ~~Register (and each Lender shall make a copy~~ applicable participation for all purposes of ~~its Participant Register in~~ this Agreement notwithstanding any notice to the ~~extent it has one) available for review by Borrower from time to time as Borrower may reasonably request~~contrary.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (Colony Credit Real Estate, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum amount~~ provided, that so long as no Event of Default exists and the Maximum Revolving Amount does not exceed $25,000,000, there shall ~~not apply to (x) an assignment or delegation by~~ be no more than four Lenders holding commitments at any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000time); provided, however, that ~~Borrower~~ Companies and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Companies or the performance or observance by ~~Borrower~~ Companies of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) ~~Borrower~~Companies, 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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ Companies 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~~ 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, ~~Borrower~~Companies, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~Companies or Companies’ business. (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 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~~§ 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Telos Corp)

Assignments and Participations. (a) ~~Any Lender may~~No Seller Party shall sell, ~~with~~ assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties under this Agreement or any other Repurchase Document without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent shall not be unreasonably withheld~~any Seller Party or any of their respective Affiliates, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment sell participations to ~~a Person that is a Lender or an Affiliate~~ any Eligible Assignee (other than ~~individuals) of~~ a ~~Lender, any Lender may assign and delegate to one~~ natural person or ~~more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan~~ a Seller Party or ~~Affiliate~~ any of their respective Affiliates) (a ~~Loan Party shall be permitted to become an Assignee~~“Participant”) in all or any portion of ~~the Obligations, the Commitments and the other~~ Buyer’s rights ~~and~~ and/or obligations ~~of such Lender hereunder and~~ under the ~~other Loan~~ Repurchase Documents~~, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to~~ ; provided that (x) ~~an assignment~~ if a Default or ~~delegation by any Lender~~ Event of Default has occurred and is continuing, Buyer may sell participations to any ~~other Lender~~ Person at any time without consent, notice or ~~an Affiliate~~ restriction of any ~~Lender or~~ kind, other than the requirements set forth in clause (iv) below, and (y) ~~a group~~ so long as no Default or Event of ~~new Lenders~~Default has occurred and is continuing: (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, ~~each of which is an Affiliate of each other or a Related Fund~~ (ii) Buyer shall remain solely responsible to Seller for the performance of such ~~new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided~~obligations, ~~however, that Borrower and Agent may~~ (iii) Seller shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with Buyer’s rights and obligations under the ~~interest so assigned~~ Repurchase Documents and (iv) each Participant agrees to ~~an Assignee until (i) written notice~~ be bound by the confidentiality provisions set forth in Section 18.10. So long as no Default or Event of ~~such assignment~~Default has occurred and is continuing, ~~together with payment instructions~~no Participant shall have any right to approve any amendment, ~~addresses, and related information~~ waiver or consent with respect to any Repurchase Document, except to the ~~Assignee~~extent that the Repurchase Price or Price Differential of any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, including the requirements under Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it was a Buyer and had acquired its interest by assignment pursuant to Section 18.08(c), provided that such Participant shall not be entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been ~~given~~ entitled to ~~Borrower~~ receive, except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by a Governmental Authority or compliance by the participating Buyer with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over such participating Buyer, in each case made or issued after the Participant acquired the applicable participation. To the extent permitted by Requirements of Law, each Participant shall also be entitled to the benefits of Sections 10.02(i) and ~~Agent~~ 18.17 to the same extent as if it was a Buyer and had acquired its interest by assignment pursuant to Section 18.08(c). (c) Buyer may at any time, without the consent of any Seller Party but upon notice to Seller, sell and assign all or any portion of all of the rights and obligations of Buyer under the Repurchase Documents to any Eligible Assignee proposed by Buyer; provided that if a Default or Event of Default has occurred and is continuing, Buyer may enter into any such ~~Lender~~ sale and assignments with any Person at any time without consent, notice or restriction of any kind; provided, further that so long as no Default or Event of Default has occurred and is continuing, so long as initial Buyer owns any economic interest in the ~~Assignee~~Transactions, (iiA) Seller shall continue to deal solely and directly with initial Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents, and (B) initial Buyer shall retain sole decision making authority with respect to acceptance of prospective Purchased Assets into Transactions and Market Value and Margin Deficit determinations. Each such ~~Lender and its Assignee have delivered~~ assignment shall be made pursuant to ~~Borrower and Agent~~ an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit E (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the Assignee thereunder~~ each such assignee shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the related assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.08(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.08(b). (d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller and any such cooperation shall be at no cost to Seller. (e) Subject to the terms and conditions of Sections 18.08(b) and 18.08(c), Buyer shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesEligible Assignee. (f) ~~In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the assignees that become Parties hereto and, with respect to each such assignee, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The Register shall be available for inspection by the Parties at any reasonable time and from time to time upon reasonable prior notice. (g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register. (j) Agent shall make a copy~~ Register as the owner of the ~~Register (and each Lender shall make a copy~~ applicable participation for all purposes of ~~its Participant Register in~~ this Agreement notwithstanding any notice to the ~~extent it has one) available for review by Borrower from time to time as Borrower may reasonably request~~contrary.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (Claros Mortgage Trust, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which~~ Borrower (such consent ~~of Agent shall~~ not to be unreasonably withheld~~, delayed, or conditioned,~~ ) and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ Collateral Agent (provided that no written consent of Collateral Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Collateral Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Collateral Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Collateral Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Collateral Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Collateral Agent for Collateral Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Collateral Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Collateral Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon Collateral 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, (v5) such Assignee appoints and authorizes Collateral Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Collateral Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Collateral Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Borrower (such consent not to be unreasonably withheld) and Collateral Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Collateral Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) Borrower, Collateral 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 (Aa) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (Bb) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (Cc) release all or ~~substantially all~~ a material portion 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, (Dd) 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)~~Lender, or (Ee) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ 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, Collateral Agent, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower’s business. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent ~~(as a non-fiduciary agent on behalf of Borrower) shall maintain~~may, 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 one or both of the Term Loans (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 each 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~~ prior consent of ~~the registered note~~Collateral Agent, ~~if any, evidencing the same duly endorsed by (~~assign any rights 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 obligations it may have hereunder 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), 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 Term Loans 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 RegisterPerson. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Cutter & Buck Inc)

Assignments and Participations. Each Lender will be permitted to make assignments (aexcept to Disqualified Institutions) ~~Any Lender may~~in minimum amounts to be agreed to other entities approved by (x) the Administrative Agent (y), ~~with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ so long as no ~~Event~~ payment or bankruptcy event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that default has occurred and is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligationscontinuing, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addressesRepresentative, and ~~related information~~ (z) with respect to commitments under the ~~Assignee~~Revolving Credit Facility, ~~have been given to Borrower and Agent by such~~ the Swingline Lender and the ~~Assignee~~Issuing Bank, ~~(ii)~~ each such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease approval not to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 unreasonably withheld 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documentsdelayed; provided, however, 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 Commitments, and the other rights and interests no approval of the ~~Originating Lender hereunder~~ Borrower Representative shall ~~not constitute a “Lender” hereunder~~ be required in connection with assignments to other Lenders or ~~under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged~~any of their affiliates, (ii) the ~~Originating~~ Borrower Representative shall be deemed to have given consent to an assignment if it shall have failed to respond to a written notice thereof within ten business days and (iii) no approval of the Administrative Agent shall be required in connection with assignments (x) under the Term Facility to other Lenders or any of their affiliates or approved funds or (y) under the Revolving Credit Facility to other Lenders under the Revolving Credit Facility or any of their affiliates or approved funds. Each Lender ~~shall remain solely responsible for~~ will also have the ~~performance~~ right, without consent of the Borrower Representative or the Administrative Agent, to assign as security all or part of its rights under the Credit Documentation to any Federal Reserve Bank. Lenders will be permitted to sell participations (except to Disqualified Institutions, if the list of Disqualified Institutions has been provided to all Lenders) with voting rights (a) limited to matters in respect of (i) increases in commitment amount of such ~~obligations~~participant, (ii) reductions of principal, interest or fees payable to such participant, (iii) ~~Borrower, Agent,~~ extension of scheduled maturities or times for payment of amounts payable to such participant 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 releases 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~~ value of the guarantees and (~~except~~ b) for clarification purposes, which shall not include the right to vote on waivers of defaults or events of default and the ~~extent expressly provided~~ sale of such participations shall not require the approval of the Borrower Representative or the Administrative Agent. An assignment fee in the amount of $3,500 will be charged with respect to each assignment unless waived by the Administrative Agent in its sole discretion. Notwithstanding anything herein or in ~~any~~ the Credit Documentation to the contrary, (i) in the case that after the date of the ~~Loan Documents) supporting~~ Commitment Letter the ~~Obligations hereunder in which~~ Borrower Representative supplements the list of Disqualified Institutions, such ~~Participant is participating, (D) postpone~~ supplement from 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, and (v) all amounts payable by Borrower ~~hereunder shall be determined as if such Lender had~~ Representative may 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~~ retroactively disqualify any person that previously acquired 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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) Facilities and (ii) the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not ‎(x) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or ~~sale~~ participation of ~~all~~ loans, or ~~part~~ disclosure of ~~such Registered Loan (and~~ confidential information, to, or the ~~registered note~~restrictions on any exercise of rights or remedies of, ~~if any~~any Disqualified Institution. Subject to the Documentation Principles, ~~evidencing~~ assignments of loans under the ~~same) may~~ Term Facility to the Borrowers or any of their subsidiaries shall be ~~effected only by registration~~ permitted subject to satisfaction 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 conditions to be set forth 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), 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 Term Loans 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 RegisterDocumentation Precedent. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Commitment Letter (Coherent Inc)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000, and provided further that prior to the occurrence of an Event of Default, no assignment shall be made without Borrower's prior consent, which shall not be unreasonably withheld or delayed. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender, including but not limited to the obligations set forth in Section 16.11. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, ; (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, ; (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Factory Card Outlet Corp)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of Agent, ~~which consent of Agent shall not be unreasonably withheld, delayed,~~ assign and delegate to one or ~~conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ more assignees (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender ~~or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate~~ to ~~one or more assignees so long as such prospective assignee is~~ an Eligible ~~Transferee~~ Transferee) (~~each~~each an "ASSIGNEE") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except that such minimum amount shall not apply to ~~(x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ Affiliates of ~~any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)~~; provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, ~~addresses,~~ addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b),~~ substance satisfactory to Agent; and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~2,500. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to ~~Borrower~~Agent) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~SECTION 11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a ~~“Participant”~~"PARTICIPANT") participating interests in ~~all or any portion of its~~ the Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the ~~“Originating Lender”~~"ORIGINATING LENDER") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and ~~the Lenders~~ Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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),~~ Lender; or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Phonetel Technologies Inc)

Assignments and Participations. (a) ~~Any~~ 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 ~~may~~and their respective successors and permitted 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 ~~Agent~~each Lender and any such assignment without the Lenders' prior written consent shall be null and void. (b) Subject to the conditions set forth in clause (c) below, ~~which~~ each Lender may assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to: (i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and (ii) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that (A) the consent of any Agent shall not be unreasonably withheld, ~~delayed~~conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or ~~conditioned~~deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, ~~and~~ conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default ~~exists~~has occurred and is continuing, ~~with~~ the ~~prior~~ Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written ~~consent of Borrower, which consent of Borrower~~ request therefor and (3) shall not be ~~unreasonably withheld~~required during the continuance of an Event of Default; provided, ~~delayed~~further, ~~or conditioned (provided~~ that no written consent of ~~Agent~~ the Agents or the Administrative Borrower shall be required (x) in connection with an any assignment ~~to a Person that is~~ by a Lender to any Agent or ~~an Affiliate (other than individuals) of a~~ any Lender, any ~~Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or~~ Affiliate of ~~a Loan Party shall be permitted to become an Assignee~~any Agent or any Lender or any Related Fund of any Agent or any Lender or (y) if such assignment is in connection with any merger, amalgamation, consolidation, sale, transfer, or other disposition of all or any substantial portion of the ~~Obligations,~~ business or loan portfolio of any Lender. (c) Assignments shall be subject to the ~~Commitments and~~ following additional conditions: (i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the ~~other rights and obligations~~ remainder of such ~~Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent~~▇▇▇▇▇▇'s Commitment) ~~of $5,000,000~~ (except such minimum amount shall not apply to an assignment by a Lender to (xA) an ~~assignment~~ Agent or ~~delegation by any Lender to any other Lender or~~ a Lender, an Affiliate of ~~any~~ an Agent or a Lender or a Related Fund of an Agent or a Lender or (yB) a group of new Lenders, each of ~~which~~ whom is an Affiliate or Related Fund of each other ~~or a Related Fund of such new Lender~~ to the extent ~~that~~ the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender 1,000,000 or ~~Assignee has paid to Agent for Agent’s separate account~~ a ~~processing fee in the amount~~ multiple of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future obligations under this Agreement (and 100,000 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 and the other Loan Documents, such Lender shall cease to be a party hereto and theretoexcess thereof); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.;

Appears in 1 contract

Sources: Financing Agreement (Mondee Holdings, Inc.)

Assignments and Participations. (a) ~~Any Lender may, with~~ This Agreement and the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower Tranche A Revolving Loan Notes shall be ~~required in connection with an assignment~~ binding upon and inure to the benefit of the Borrowers and the Agent and each Tranche A Lender and their respective successors and assigns (including, except for the right to request Tranche A Revolving Loans, any trustee succeeding to the rights of the Borrowers pursuant to Chapter 11 of the Bankruptcy Code or pursuant to any conversion to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion case under Chapter 7 of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Bankruptcy Code); provided, however, that ~~Borrower and Agent~~ each of the Borrowers may ~~continue to deal solely and directly with such Lender in connection with~~ not assign or transfer any of their rights hereunder, or under the ~~interest so assigned to an Assignee until (i)~~ Tranche A Revolving Loan Notes, without the prior written ~~notice~~ consent 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~~ each Tranche A Lender and any such assignment without the ~~Assignee, (ii) such Lender~~ Tranche A Lenders’ prior written consent shall be null and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500void. (b) ~~From~~ Each Tranche A Lender may, with the written consent of the Agent (which consent is not to be unreasonably withheld) and, unless a Default or Event of Default has occurred and is continuing, the written consent of the Administrative Borrower (which consent shall not be required in connection with any assignment to any Affiliate of such Tranche A Lender), such consent of the Administrative Borrower not to be unreasonably withheld, assign to one or more other lenders 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 Tranche A Revolving Loans made by it and the Tranche A Revolving Loan Notes held 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 Tranche A Lender’s Commitment) and (ii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance, together with any Tranche A Revolving Loan Note subject to such assignment. Upon such execution, delivery and acceptance, from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in each Assignment and ~~Acceptance~~ Acceptance, which effective date shall be at least three (3) Business Days after the delivery thereof to the Agent (or such shorter period as shall be agreed to by the Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Tranche A Lender” hereunder and, ~~if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto 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, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents,~~ Acceptance and (iiB) the assigning Tranche A Lender 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 ~~any future~~ its obligations under this Agreement (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Tranche A Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement, such Tranche A Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(ahereto). (ci) By executing and delivering an Assignment and Acceptance, the assigning Tranche A Lender ~~thereunder~~ and the ~~Assignee~~ 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 Tranche A 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 Tranche A Revolving Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Tranche A Revolving Loan Document furnished pursuant hereto, ; (iiB) ~~such~~ the assigning Tranche A Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ the Borrowers or any of their Subsidiaries or the performance or observance by ~~Borrower~~ the Borrowers of any of ~~its~~ their obligations under this Agreement or any other Tranche A Revolving Loan Document furnished pursuant hereto, ; (~~iii~~C) such ~~Assignee~~ assignee confirms that it has received a copy of this ~~Agreement~~Agreement and the other Tranche A Revolving Loan Documents, together with 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~~ assignee will, independently and without reliance upon ~~Agent~~the Assigning Tranche A Lender, ~~such assigning Lender~~ the Agent or any ~~other Lender,~~ Tranche A 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 Tranche A Revolving Loan Documents; (vE) such ~~Assignee~~ assignee appoints and authorizes the Agent to take such ~~actions~~ action as Agent on its behalf and to exercise such powers under this Agreement and the other Tranche A Revolving Loan Documents as are delegated to ~~Agent,~~ the Agent by the terms ~~hereof and~~ thereof, together with such powers as are reasonably incidental thereto, ; and (viF) such ~~Assignee~~ 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 Tranche A Revolving Loan Documents are required to be performed by it as a Tranche A Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) Agent ~~(as a non-fiduciary agent on behalf of Borrower)~~ shall maintain, or cause to be ~~maintained~~maintained at the Payment 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 Tranche A Lenders and the Commitments of, and principal amount of the Tranche A Revolving Loans owing to each Tranche A Lender from time to time (the “Register”~~) on which it enters~~ ). The entries in the ~~name~~ Register shall be conclusive and ~~address of each Lender as the registered owner of one or both of the Term Loans (~~binding for all purposes, absent manifest error, and the ~~principal amount thereof~~ Borrowers, the Agent and ~~stated interest thereon~~the Tranche A Lenders may treat each Person whose name is recorded in the Register as a Tranche A Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Tranche A Lender at any reasonable time and from time to time upon reasonable prior notice. (iii) ~~held~~ Upon its receipt of an Assignment and Acceptance executed by an assigning Tranche A Lender and an assignee, together with the Tranche A Revolving Loan Notes subject to such ~~Lender (each~~assignment, ~~a “Registered Loan”). Other than in connection with an~~ the Agent shall, if the Agent consents to such assignment ~~by a Lender of all or any portion of its portion of each Term Loan to an Affiliate of~~ and if such ~~Lender or a Related Fund of such Lender~~ Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance, (ii) give prompt notice thereof to the Administrative Borrower, (iii) record the information contained therein in the Register, and (iv) prepare and distribute to each Tranche A Lender and the Administrative Borrower a revised Schedule 1.01(C) hereto after giving effect to such assignment, which revised Schedule 1.01(C) shall replace the prior Schedule 1.01(C) and become part of this Agreement. (iv) A Registered Tranche A Revolving Loan (and the ~~registered note~~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~~ 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~~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~~Registered Note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new ~~registered notes~~ 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 Tranche A Revolving Loan (and the ~~registered note~~Registered Note, if any evidencing the same), ~~Borrower~~ the Agent shall treat the Person in whose name such Registered Tranche A Revolving Loan (and the ~~registered note~~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 Loans 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. (iv) In the event that a any Tranche A Lender sells participations in ~~the~~ a Registered Tranche A Revolving Loan, such ~~Lender, as a non-fiduciary agent on behalf of Borrower,~~ Tranche A Lender shall maintain ~~(or cause to be maintained)~~ a register on which it enters the name of all participants in the Registered Tranche A Revolving 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 Tranche A Revolving Loan (and the Registered Note, if any, evidencing the same) may be participated in in whole or in part only by registration of such participation on the Participant Register (and each ~~registered note~~ Registered Note shall expressly so provide). Any participation of such Registered Tranche A Revolving Loan (and the ~~registered note~~Registered Note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. (jvi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Tranche A Revolving Loan shall provide the Agent (in the case of a purchase or assignment) or the Tranche A Lender (in the case of a participation) with a completed Internal Revenue Service Form W-8 (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 Tranche A Revolving Loan. (c) Each Tranche A Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Tranche A Revolving Loan Documents (including, without limitation, all or a portion of its Commitment, and the Tranche A Revolving Loans made by it); provided, that (i) such Tranche A Lender’s obligations under this Agreement (including without limitation, its Commitment hereunder) and the other Tranche A Revolving Loan Documents shall ~~make~~ remain unchanged; (ii) such Tranche A Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agent and the other Tranche A Lenders shall continue to deal solely and directly with such Tranche A Lender in connection with such Tranche A Lender’s rights and obligations under this Agreement and the other Tranche A Revolving Loan Documents, and (iii) a ~~copy~~ participant shall not be entitled to require such Tranche A Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the ~~Register (and each Lender shall make a copy of its Participant Register~~ maturity dates or decrease in the ~~extent it has one~~principal amount of the Tranche A Revolving Loans, or (B) ~~available for review by~~ action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Tranche A Revolving 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 Borrower ~~from time to time~~ (except as ~~Borrower may reasonably request~~set forth in Section 9.08 of this Agreement or any Tranche A Revolving Loan Document).

Appears in 1 contract

Sources: Debt Financing Agreement (Oakwood Homes Corp)

Assignments and Participations. (a) ~~Any~~ Each Lender ~~may~~shall have the right to sell, ~~with~~ assign or transfer all or any part of its Note or Notes, its Commitment and its rights and obligations hereunder to one or more Affiliates, Lenders, financial institutions, pension plans, insurance companies, investment funds, or similar Persons who are Eligible Assignees or to a Federal Reserve Bank; provided, that each sale, assignment or transfer (other than to an Affiliate, a Lender or a Federal Reserve Bank) shall require the ~~prior written consent of Agent, which~~ consent of Agent ~~shall~~ and the Borrower, which consents will not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that ~~no Loan Party~~ if an Event of Default has occurred and is continuing, the consent of the Borrower shall not be required. Any such assignee, transferee or ~~Affiliate~~ recipient shall have, to the extent of such sale, assignment, or transfer, the same rights, benefits and obligations as it would if it were such Lender and a holder of such Note, Commitment and rights and obligations, including, without limitation, the right to vote on decisions requiring consent or approval -64- of all Lenders or Majority Lenders and the obligation to fund its Commitment; provided, that (1) each such sale, assignment, or transfer (other than to an Affiliate, a Lender or a Federal Reserve Bank) shall be in an aggregate principal amount not less than $5,000,000, (2) each remaining Lender shall at all times maintain its Commitment then outstanding in an aggregate principal amount at least equal to $5,000,000; (3) each such sale, assignment or transfer shall be of a ~~Loan Party shall be permitted to become an Assignee) all or any~~ Pro Rata portion of ~~the Obligations~~such Lender's Commitment, ~~the Commitments and the other~~ (4) no Lender may offer to sell its Note or Notes, Commitment, rights and obligations ~~of such Lender hereunder and under the other Loan Documents,~~ or interests therein in ~~a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ violation of any ~~Lender or~~ securities laws; and (y5) no such assignments (other than to a ~~group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to~~ Federal Reserve Bank) shall become effective until the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such assigning Lender and its ~~Assignee have delivered~~ assignee delivers to Agent and Borrower ~~and Agent~~ an Assignment and Acceptance and ~~Agent has notified~~ the ~~assigning Lender of its receipt thereof in accordance with Section 13.1(b),~~ Note or Notes subject to such assignment and ~~(iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing~~ other documents evidencing any such assignment. An assignment fee in the amount of $~~3,500.~~ 2,500 for each such assignment (bother than to an Affiliate, a Lender or the Federal Reserve Bank) ~~From~~ will be payable to Agent by assignor or assignee. Within five (5) Business Days after its receipt of copies of the Assignment and Acceptance and the other documents relating thereto and the Note or Notes, the Borrower shall execute and deliver to Agent (for delivery to the relevant assignee) a new Note or Notes evidencing such assignee's assigned Commitment and if the assignor Lender has retained a portion of its Commitment, a replacement Note in the principal amount of the Commitment retained by the assignor (except as provided in the last sentence of this paragraph (a) such Note or Notes to be in exchange for, but not in payment of, the Note or Notes held by such Lender). On and after the effective date ~~that Agent notifies~~ of an assignment hereunder, the ~~assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder~~ assignee shall for all purposes be a Lender, party ~~hereto and,~~ to this Agreement and any other Loan Document executed by the ~~extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender”~~ Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, ~~and (ii) the assigning Lender shall,~~ to the same extent ~~that rights~~ as if it were an original party thereto, and ~~obligations hereunder and under~~ no further consent or action by Borrower, Lenders or the ~~other Loan Documents have been assigned by it pursuant~~ Agent shall be required to ~~such Assignment and Acceptance, relinquish its rights (except~~ release the transferor Lender with respect to Section 10.3) and be released from any future 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 its Commitment assigned to such assignee and the ~~other Loan Documents, such~~ transferor Lender shall ~~cease to~~ henceforth be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)so released. (cb) ~~By executing~~ Each Lender shall have the right to grant participations in all or any part of such Lender's Notes and ~~delivering an Assignment and Acceptance~~Commitment hereunder to one or more pension plans, ~~the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each~~ investment funds, insurance companies, financial institutions or other ~~and the other parties hereto as follows~~Persons, provided, that: (i) ~~other than~~ each Lender granting a participation shall retain the right to vote hereunder, and no participant shall be entitled to vote hereunder on decisions requiring consent or approval of Lenders or Majority Lenders (except as ~~provided~~ set forth 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 Loan Document furnished pursuant hereto, (iii) below); (ii) in the event any Lender grants a participation hereunder, such ~~assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its~~ Lender's obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, ~~(ii) the Originating~~ such Lender shall remain solely responsible to the other -65- parties hereto for the performance of such obligations, such Lender shall remain the holder of any such Note or Notes for all purposes under the Loan Documents, and Agent, each Lender and Borrower shall be entitled to deal with the Lender granting a participation in the same manner as if no participation had been granted; and (iii) ~~Borrower, Agent, and the Lenders~~ no participant shall ~~continue~~ ever have any right by reason of its participation 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 exercise any of the ~~Loan Documents) supporting the Obligations hereunder in which such Participant is participating~~rights of Lenders hereunder, ~~(D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through~~ except that any Lender may agree with any participant that such Lender will not, without the consent of such participant (~~other than a~~ which consent may not be unreasonably withheld) consent to any amendment or waiver requiring approval 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, and (v)~~ 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. (fc) ~~In connection with~~ It is understood and agreed that any Lender may provide to assignees and participants and prospective assignees and participants financial information and reports and data concerning Borrower's properties and operations which was provided to 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~~ Lender pursuant to this Agreement, ~~a Lender may~~provided, ~~subject to~~ that each recipient thereto has first agreed, for the ~~provisions~~ benefit of ~~Section 17.9, disclose all documents and information which it now or hereafter may have relating to~~ Borrower and ~~its Subsidiaries~~ Guarantors, to hold such information, reports and ~~their respective businesses~~data in confidence on the terms set out in Section 12(j) hereof. (gd) ~~Any other provision in this Agreement notwithstanding~~Upon the reasonable request of either Agent or Borrower, each Lender will identify those to whom it has assigned or participated any ~~Lender may at any time create a security interest in, or pledge, all or any portion~~ part of its ~~rights under~~ Notes and ~~interest in this Agreement 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~~Commitment, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (provide the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 amounts so 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 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), 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 Term Loans 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 Registerparticipated. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Parallel Petroleum Corp /De/)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent ~~shall not be unreasonably withheld, delayed, or conditioned,~~ and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of~~ Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that (i) no written consent of Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee, (ii) no written consent of Borrower shall be required in connection with any assignment or delegation if an Event of Default shall have occurred and be continuing, and (iii) no assignment and delegation shall be made, without the prior written consent of Borrower, to a any Person that is ~~a Lender~~ organized in or ~~an Affiliate (~~under the laws of any jurisdiction other than ~~individuals~~the United States or any state or other political subdivision thereof or is otherwise not a United States person as defined in the IRC (a “Foreign Person”) ~~of a Lender~~if payments to such Person would require Borrower to pay any Taxes or any additional amounts pursuant to Section 16.11(e)), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan ~~Documents,~~ Documents in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)1,000,000; provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating or other beneficial interests (“Participating Interests”) in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such Participating Interests by a Lender to an Eligible Transferee); provided, however, 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~~ Participating Interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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~~ 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~~ a material portion 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~~has a Participating Interest, (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)~~Lender, or (E) ~~decreases~~ reduce the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower ~~hereunder~~ under any of the Loan Documents (including, without limitation, under Section 16.11) 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~~ set-off in respect of its ~~participating interest~~ Participating Interest in amounts owing under this Agreement to the same extent as if the amount of its ~~participating interest~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~ Participating Interest or proposed assignment or ~~participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement~~Participating Interest, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower’s business, so long as such Lender has first secured a customary confidentiality agreement from such proposed assignee or Participant. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Acme Communications Inc)

Assignments and Participations. (a) Assignments. (1) Any Lender other than 1106 (or Permitted Assignees of 1106) may, with the ~~prior written~~ consent of ~~Agent, which consent of Agent shall~~ Borrower (not to be unreasonably delayed or withheld), ~~delayed, or conditioned, and so long as no~~ unless an Event of Default ~~exists, with the prior written consent of Borrower,~~ has occurred and is continuing in which case no consent of Borrower shall be required, and (2) 1106 and any Permitted Assignee of 1106 may, with the consent of Borrower and [****], which consent may be withheld by [****] in its sole discretion (provided that, the consent of Borrower and [****] shall not be ~~unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be~~ required ~~in connection with an~~ if such assignment is to a ~~Person that is a Lender or an Affiliate (other than individuals) of a Lender~~Permitted Assignee), at any ~~Lender may~~ time assign ~~and delegate~~ to one or more ~~assignees so long as~~ Persons (other than natural persons) (any such ~~prospective assignee is an Eligible Transferee (each~~Person, an “Assignee”~~; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee~~) all or any portion of ~~the Obligations~~such Lender’s Loan. The Borrower shall be required to respond to any request for consent (indicating whether or not it is providing its consent) within five (5) Business Days of receiving a written request from a Lender, ~~the Commitments~~ and ~~the other rights and obligations of~~ shall be deemed to have provided its consent if it fails to respond during such ~~Lender hereunder and under the other Loan Documents,~~ period. Any such assignment shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount equal to ~~be assigned to all such new Lenders is at least~~ five hundred thousand dollars ($~~5,000,000); provided~~500,000) or, ~~however~~if less, ~~that Borrower~~ the remaining Loan held by the assigning Lender. The Loan Parties and Agent ~~may~~ shall be entitled to continue to deal solely and directly with such Lender in connection with the ~~interest~~ interests so assigned to an Assignee until ~~(i) written notice of such assignment, together with payment instructions, addresses,~~ Agent shall have received and ~~related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent~~ accepted an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500Acceptance. (bi) From and after the date ~~that Agent notifies~~ on which the ~~assigning Lender (~~conditions described above have been met, and subject to acceptance and recording of the assignment pursuant to Section 14.1(a)(iii) together with a ~~copy~~ processing and recordation fee of $3,500 payable to ~~Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of~~ the ~~required processing fee~~Agent, (i) ~~the~~ such Assignee ~~thereunder~~ shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender ~~under the Loan Documents,~~ hereunder and (ii) the assigning ~~Lender shall~~Lend▇▇, 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~~ shall be released from its rights (~~except with respect to Section 10.3~~other than its indemnification rights) and ~~be released from~~ obligations hereunder. (ii) Any Lender may at any ~~future obligations~~ 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, and ~~in the case~~ this Section shall not apply to any such pledge or assignment of ~~an Assignment and Acceptance covering all~~ a security interest; provided that, no such pledge or ~~the remaining portion~~ assignment of ~~an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be~~ a ~~party hereto and thereto); provided, however, that nothing contained herein~~ security interest shall release ~~any assigning~~ a Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations ~~under this Agreement~~ hereunder or substitute any ~~other Loan Document furnished pursuant~~ such pledgee or assignee for such Lender as a party hereto, . (iii) ~~such Assignee confirms that it has received~~ Agent, acting solely for this purpose as an agent of Borr▇▇▇▇, ▇▇all maintain at one of its offices a copy of ~~this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such~~ each Assignment and ~~Acceptance, (iv) such Assignee will, independently~~ Acceptance delivered to it and ~~without reliance upon Agent, such assigning Lender or any other Lender~~a register for the recordation of the names and addresses of the Lenders, and ~~based on such documents~~ the Commitments of, and ~~information as it shall deem appropriate at~~ principal amounts of (and stated interest on) the ~~time~~Loans owing to, ~~continue~~ each Lender LEGAL*65859792.17 pursuant to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof ~~and thereof, together with such powers as are reasonably incidental thereto~~from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and ~~(vi) such Assignee agrees that it will perform all of~~ Borrower, Agent and the ~~obligations which by~~ 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 are required~~ Agreement. The Register shall be available for inspection by Borrower and the Lenders, at any reasonable time and from time to ~~be performed by it as a Lender~~time upon reasonable prior notice. (d) 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (eb) Any Lender ~~may~~ may, at any time sell to one or more ~~commercial banks, financial institutions,~~ Persons (other than natural persons) participating interests in its Loans or other ~~Persons~~ interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) ~~participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”)~~ such Lend▇▇’▇ obligations hereunder ~~and under the other Loan Documents; provided, however, that (i) the Originating Lender~~ shall remain ~~a “Lender”~~ unchanged for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchangedpurposes, (iib) ~~the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent,~~ Borrower and ~~the Lenders~~ Agent shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating Lender’s~~ such Lend▇▇’▇ 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, and (vc) 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~~ participation 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~~ paid 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, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the ObligationsLender. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 15.1 expressly requiring 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund vote of such Lender. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lend▇▇ ▇▇▇ers into with any Participant. Each Lender shall, ~~and which assignment is not recorded in the Register, the assigning Lender, on behalf~~ acting solely for this purpose as an agent of Borrower, ~~shall~~ maintain at one of its offices a register ~~comparable to~~ for the ~~Register. (i) In~~ recordation of the ~~event that a Lender sells participations in~~ names and addresses of each such Participant, and the ~~Registered Loan~~Commitments of, and principal amount of and accrued interest on the Loans owing to, 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) Participant (the “Participant Register”)~~. A Registered Loan (and the Registered Note~~; provided that, ~~if any, evidencing the same) may be participated in whole~~ such Lender shall not have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any Loan, Commitments or its other obligations under any Loan Document) to any Person except to the extent that disclosure is required to establish that such a participation in a Loan or other obligation is held by a Participant who is a non-resident alien individual (within the meaning of Code Section 871) or a foreign corporation (within the meaning of Code Section 881) is in registered ~~note shall expressly so provide~~form (as described above). ~~Any participation of such Registered Loan (~~The entries in the Participant Register shall be conclusive absent manifest error, and the ~~registered note, if any, evidencing~~ Lenders shall have the ~~same) may be effected only by~~ right to treat each person whose name is recorded in the ~~registration~~ Participant Register as the owner of such participation on for all purposes of this Agreement notwithstanding any notice to the ~~Participant Register~~contrary. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Acreage Holdings, Inc.)

Assignments and Participations. (a1) ~~Any~~ Each Lender ~~may~~shall not assign all or any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) except that each Lender may and (2) 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 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (iv) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all Lenders under a Tranche) or all Lenders (or all Lenders under a Tranche) affected or adversely affected thereby is required and, with respect to any amendment or waiver requiring the ~~prior written~~ consent of all Lenders, as to which the Required Lenders, the Required 364-Day Tranche Lenders, the Required 3-Year Tranche Lenders or the Required 5-Year Tranche Lenders, as applicable, shall have given their consent, such Lender shall, in each case of clauses (1) and (2) above, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that: (A) such assignment shall be made with the consent of the Borrower and the Administrative Agent, which ~~consent of Agent~~ consents shall not be unreasonably ~~withheld~~withheld or delayed (it being agreed that notwithstanding anything herein, ~~delayed~~during the Certain Funds Period, (x) the Borrower may withhold such consent in its sole discretion unless such assignment is from a Lender to one or ~~conditioned, and so long as no Event~~ more of ~~Default exists, with the prior written~~ its Affiliate(s) (in which case such consent ~~of Borrower, which consent of Borrower~~ shall not be unreasonably ~~withheld, delayed,~~ withheld or ~~conditioned~~ delayed by the Borrower) and (~~provided that no written~~ y) the Administrative Agent may withhold such consent ~~of Agent or Borrower shall be required~~ in its sole discretion in connection with an assignment pursuant to clause (1) above); provided that, in the case of the Borrower only, such consent (A) shall not be required while an Event of Default (or during the Certain Funds Period, a ~~Person that~~ Certain Funds Default) has occurred and is ~~a Lender or an Affiliate~~ continuing, (B) other than ~~individuals) of a Lender~~during the Certain Funds Period, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be ~~permitted to become an Assignee) all or any portion~~ deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of ~~the Obligations, the Commitments and the other rights and obligations~~ notice of such ~~Lender hereunder~~ assignment and ~~under~~ (C) other than during the ~~other Loan Documents~~Certain Funds Period, ~~in a minimum amount (unless waived by Agent) of $5,000,000 (except~~ such ~~minimum amount~~ consent shall not ~~apply to (x)~~ be required in the case of an assignment ~~or delegation by any Lender~~ to any other Lender or an Affiliate of any Lender; provided, further that, in each case above, notice thereof shall have been given to the Borrower and the Administrative Agent; (B) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; (C) 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 of the assigning Lender being assigned pursuant to each such assignment (ydetermined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $25,000,000 or an integral multiple of $5,000,000 in excess thereof; (D) [reserved]; (E) each such assignment made as a ~~group~~ result of ~~new Lenders, each~~ a demand by the Borrower pursuant to this Section 9.07(a)(2) shall be either an assignment of ~~which is~~ all of the rights and obligations of the assigning Lender under this Agreement or an ~~Affiliate~~ assignment of ~~each other or~~ a ~~Related Fund~~ portion of such ~~new~~ 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 the Borrower pursuant to this Section 9.07(a)(2), (1) unless and until such Lender shall have received one or more payments in an aggregate amount at least equal to the ~~extent that~~ 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 (2) unless and until the Borrower shall have paid (or caused to be ~~assigned~~ paid) to ~~all such new Lenders is at least~~ the Administrative Agent a processing and recordation fee of $~~5,000,000)~~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 (G) 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)(2), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption and, 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 (F)(3) of this Section 9.07(a)), a processing and recordation fee of $3,500; provided, however, that the Administrative Agent ~~may continue~~ may, in its sole discretion, elect to ~~deal solely~~ waive such processing and ~~directly with such Lender~~ recordation fee in the case of any assignment and provided, further that in the event that, in connection with a demand by the ~~interest so assigned~~ Borrower pursuant to ~~an Assignee until (i) written notice~~ this Section 9.07(a)(2), the assignor shall not execute and deliver the relevant Assignment and Assumption within one Business Day of the Borrower’s request, such ~~assignment~~assignor shall be deemed to have executed and delivered such Assignment and Assumption. The assignee, ~~together with payment instructions~~if it is not a Lender, ~~addresses, and related information with respect~~ shall deliver to the ~~Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and~~ Administrative Agent an ~~Assignment~~ Administrative Questionnaire. Upon such execution, delivery, acceptance and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~recording, ~~and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From~~ from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in each Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Assumption, (ix) 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~~Assumption, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender ~~under the Loan Documents,~~ hereunder and (iiy) 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~~Assumption, relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future~~ 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 (~~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~~ Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(ahereto). (cb) By executing and delivering an Assignment and ~~Acceptance~~Assumption, 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~~Assumption, 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 ~~Loan Document~~ 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 ~~Loan Document~~ instrument or 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,~~ Assumption; (iv) such ~~Assignee~~ assignee will, independently and without reliance upon any 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~~ assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such ~~actions~~ 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 ~~Agent,~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto~~, and~~ ; and (vivii) such ~~Assignee~~ 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, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. (d) ~~Immediately upon~~ The Administrative Agent~~’s receipt~~ , acting solely for this purpose as the agent of the ~~required processing fee~~Borrower, ~~if applicable~~shall maintain at its address referred to in Section 9.02 (a) a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and ~~delivery~~ principal amount (and stated interest) of ~~notice~~ the Advances owing to, each Lender from time to time (the ~~assigning Lender pursuant to Section 13.1(b~~“Register”)~~, this Agreement~~ . The entries in the Register shall be ~~deemed to be amended to the extent~~conclusive and binding for all purposes, ~~but only to the extent~~absent manifest error, ~~necessary to reflect the addition of the Assignee~~ and the ~~resulting adjustment~~ Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~the Commitments arising therefrom~~this Agreement. The ~~Commitment allocated~~ Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to ~~each Assignee shall reduce such Commitments of the assigning Lender pro tanto~~time upon reasonable prior notice. (e) ~~Any~~ Each Lender may ~~at any time~~ sell participations to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons~~ entities (~~a “Participant”~~other than the Borrower or any of its Affiliates or any natural person) ~~participating interests~~ in or to all or ~~any~~ a portion of its ~~Obligations~~rights and obligations under this Agreement (including, without limitation, all or a portion of its ~~Commitment,~~ Commitment and the ~~other rights and interests~~ Advances owing to it) without the consent of ~~that Lender (~~the ~~“Originating Lender”) hereunder and under~~ Administrative Agent or the ~~other Loan Documents~~Borrower; provided, however, ~~that~~ 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 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 such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ; (ii) ~~the Originating~~ 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, ~~Agent,~~ the Agents and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents,~~ Agreement; and (ivv) no ~~Lender~~ participant under any such participation shall ~~transfer or grant~~ have any ~~participating interest under which the Participant has the~~ right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or ~~waiver with respect to, this Agreement or any other Loan Document~~therefrom, except to the extent that such ~~amendment to~~amendment, waiver or consent would reduce the principal of, or ~~consent~~ stated rate of interest on, the Advances or ~~waiver with respect~~ the stated rate at which any fees or any other amounts payable hereunder are calculated (other than any amendment to the definition of “Default Interest” or to waive any obligation of the Borrower to pay Default Interest), 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 Advances or any fees 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 ~~Agreement~~ 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, loans, letters of credit or its other obligations under any Loan ~~Document would (A~~Document) ~~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 (~~any Person except to the extent ~~expressly provided herein~~ that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in ~~any~~ registered form under Section 5f.103-1(c) of the ~~Loan Documents) supporting~~ United States Treasury Regulations. The entries in the ~~Obligations hereunder~~ Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in ~~which~~ the Participant Register as the owner of such ~~Participant is participating, (D) postpone~~ participation for all purposes of this Agreement notwithstanding any notice to the ~~payment of, or reduce~~ contrary. For the ~~amount of~~avoidance of doubt, the ~~interest or fees payable to such Participant through such Lender~~ Administrative Agent (~~other than a waiver of default interest), or (E~~in its capacity as Administrative Agent) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) 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~~ no responsibility for maintaining a 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesRegister. (f) In Any Lender may, in connection with any ~~such~~ assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any ~~grant~~ information relating to the Borrower furnished to such Lender by or on behalf of ~~a security interest in~~the Borrower; provided that, prior to any such disclosure, the assignee or ~~pledge of~~participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information received by it from such Lender as more fully set forth in Section 9.08; provided further that, ~~its rights under~~ each Lender acknowledges, and ~~interest in this Agreement~~shall cause each assignee, ~~a Lender may~~participant or proposed assignee or participant to acknowledge, that such disclosure is restricted by the Takeover Rules and the Takeover Panel and that Section 9.08 is subject to ~~the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses~~those restrictions. (g) ~~Any~~ Notwithstanding any other provision set forth in this ~~Agreement notwithstanding~~Agreement, any Lender may at any time create a security interest ~~in, or pledge,~~ in all or any portion of its rights under ~~and interest in~~ this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors 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. (h) 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 one or both of the Term Loans (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 System or any portion of its portion of each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of central bank having jurisdiction over 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Term Loan Credit Agreement (AbbVie Inc.)

Assignments and Participations. (a) ~~Any Lender may, with~~ The Borrower may not assign its rights or obligations hereunder or under the Notes or any Letters of Credit without the prior ~~written~~ consent of all of the Lenders and the Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned . (~~provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals~~b) ~~of a Lender, any~~ Any Lender may assign ~~and delegate~~ to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations under this Agreement pursuant to an Assignment Agreement substantially in the form of ~~such Lender hereunder and under the other Loan Documents, in a minimum amount~~ Exhibit E (~~unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x)~~ an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000"Assignment"); provided, however, that (i) except in the case of an assignment to a Lender or a Lender Affiliate, such assignment shall require the written consent of the Agent, the Issuing Bank and the Swing Line Lender and, if no Event of Default has occurred and is continuing, the Borrower (which consent will not be unreasonably withheld), (ii) except in the case of an assignment to a Lender or a Lender Affiliate, any such assignment shall be in the amount of at least $5,000,000.00 or such lesser amount to which the Borrower and the Agent ~~may~~ have consented and if the assigning Lender has assigned less than all of its Percentage Share of the Loans, such assigning Lender shall retain a Percentage Share of the Loans equating to at least $5,000,000.00 or such lesser amount to which the Borrower and the Agent have consented and (iii) the assignee or assignor shall pay to the Agent a processing and recordation fee of $3,000.00 for each assignment. Any such assignment will become effective upon the execution and delivery to the Agent of the Assignment, payment of the recordation fee and, if required, the consent of the Agent, the Issuing Bank and the Swing Line Lender and the Borrower. Promptly after receipt of an executed Assignment, the Agent shall send to the Borrower a copy of such executed Assignment. Upon receipt of such executed Assignment, the Borrower, will, at its own expense, execute and deliver new Notes to the assignor and/or assignee, as appropriate, in accordance with their respective interests as they appear. Upon the effectiveness of any assignment pursuant to this Section 12.06(b), the assignee will become a "Lender," if not already a "Lender," for all purposes of this Agreement and the other Loan Documents. The assignor shall be relieved of its obligations hereunder to the extent of such assignment (and if the assigning Lender no longer holds any rights or obligations under this Agreement, such assigning Lender shall cease to be a "Lender" hereunder except that its rights under Sections 4.06, 5.01, 5.05 and 12.03 shall not be affected). The Agent will prepare on the last Business Day of each month during which an assignment has become effective pursuant to this Section 12.06(b), a new Annex I giving effect to all such assignments effected during such month, and will promptly provide the same to the Borrower and each of the Lenders. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.06(b) 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 Section 12.06(c). (c) Each Lender may, without the consent of the Borrower, the Agent, the Swing Line Lender or the Issuing Bank, transfer, grant or assign participations in all or any part of such Lender's interests hereunder pursuant to this Section 12.06(c) to any Person, provided that: (i) such Lender shall remain a "Lender" for all purposes of this Agreement and the transferee of such participation shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iv) the Borrower, the Agent, the Issuing Bank, the Swing Line Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with ~~the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents,~~ Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall ~~cease~~ retain the sole right to ~~be a party hereto~~ enforce the Loan Documents and ~~thereto); provided~~to approve any amendment, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 modification 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 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 Borrower or the performance or observance by Borrower waiver of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all provision of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; ~~provided~~provided that such agreement or instrument may provide that such Lender will not, ~~however, that (i)~~ without 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 Commitments, and the other rights and interests consent 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~~participant, ~~(ii) the Originating Lender shall remain solely responsible for the performance of such obligations~~agree to any amendment, (iii) Borrower, 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 modification 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~~ that would (Ax) forgive any principal owing on any Obligations or extend the final maturity ~~date~~ of the ~~Obligations hereunder in which such Participant is participating~~Loans, (By) reduce the interest rate (other than as a result of waiving the applicability of any post-default increases in interest rates) or fees applicable to any of the ~~Obligations hereunder~~ Commitments or Loans or Letters of Credit in which such ~~Participant~~ participant is participating, or postpone the payment of any thereof, or (Cz) release any guarantor of the Obligations or release all or substantially all of the ~~Collateral or guaranties~~ collateral (except ~~to the extent expressly~~ as provided ~~herein or~~ in ~~any of~~ the Loan Documents) supporting any of the ~~Obligations hereunder~~ Commitments or Loans or Letters of Credit in which such ~~Participant~~ participant is participating~~, (D) postpone~~ . In the ~~payment of, or reduce the amount of~~case of any such participation, the ~~interest~~ participant shall not have any rights under this Agreement or ~~fees payable~~ any of the Security Instruments (the participant's rights against the granting Lender in respect of such participation to ~~such Participant through~~ be those set forth in the agreement with such Lender ~~(other than a waiver of default interest~~creating such participation), ~~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,~~ 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 provided that such participant shall be ~~deemed~~ entitled to ~~have the right of set off in respect of its participating interest in~~ receive additional amounts ~~owing~~ under ~~this Agreement to~~ Article V on the same ~~extent~~ basis as if ~~the amount of its participating interest~~ it were ~~owing directly to it as~~ a Lender and be indemnified 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 Section 12.03 as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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 if it now or hereafter may have relating to Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.were a

Appears in 1 contract

Sources: Credit Agreement (Crimson Exploration Inc.)

Assignments and Participations. (a) The Company may not assign its rights or obligations hereunder, the OEA Pledge Agreement or under the Notes without the prior consent of all of the Banks and the Agent. (b) Any ~~Lender~~ Bank may, in the ordinary course of its business and in accordance with ~~the prior written consent of Agent~~applicable law, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, at any ~~Lender may assign and delegate~~ time sell to one or more ~~assignees so long as~~ banks or other entities ("PARTICIPANTS") participating interests in any Loan owing to such ~~prospective assignee is an Eligible Transferee (each~~Bank, ~~an “Assignee”; provided~~the Note held by such Bank, ~~however~~the Commitment of such Bank or any other interest of such Bank. Each Bank shall promptly provide notice of the identity of each Participant to the Company and the Agent. In the event of any such sale by a Bank of participating interests to a Participant, ~~that no Loan Party or Affiliate~~ such Bank shall remain solely responsible to the other parties hereto for the performance of ~~a Loan Party~~ such obligations, such Bank shall remain the holder of its Note for all purposes hereunder, all amounts payable by the Company under this Agreement shall be ~~permitted to become an Assignee) all or any portion of the Obligations~~determined as if such Bank had not sold such participating interest, ~~the Commitments~~ and the ~~other rights~~ Company and ~~obligations of such Lender hereunder and under~~ the ~~other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount~~ Agent shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such ~~Lender~~ Bank in connection with ~~the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that Bank's 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 under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)hereunder. (c) ~~By executing and delivering an Assignment and Acceptance~~Each Bank shall retain the sole right to approve, without the ~~assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i)~~ consent of any Participant, any amendment, modification or waiver of any provision hereunder other than ~~as provided in such Assignment and Acceptance~~any amendment, ~~such assigning Lender makes no representation~~ modification or ~~warranty and assumes no responsibility~~ waiver of any provision hereunder with respect to any ~~statements~~Loan or Commitment in which such Participant has an interest which forgives principal, ~~warranties~~ interest or ~~representations made in~~ fees or ~~in connection with this Agreement~~ reduces the interest rate or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility fees payable with respect to ~~the financial condition~~ any such Loan or Commitment, postpones any date fixed for any regularly-scheduled payment of ~~Borrower~~ principal of, or ~~the performance~~ interest or ~~observance by Borrower~~ fees on, any such Loan or Commitment, releases any guarantor, if any, of any such Loan or releases any substantial portion of ~~its obligations under this Agreement or~~ collateral, if any, securing any ~~other Loan Document furnished pursuant hereto, (iii)~~ such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderLoan. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of Company agrees that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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~~ setoff provided in SECTION 4.7 in respect of its participating interest in amounts owing ~~under this Agreement~~ hereunder to the same extent as if the amount of its participating interest were owing directly to it as a ~~Lender under this Agreement~~Bank hereunder, provided that each Bank shall retain the right of setoff provided in SECTION 4.7 with respect to the amount of participating interests sold to each Participant. The Banks agree to share with each Participant, and each Participant, by exercising the right of setoff provided in SECTION 4.7, agrees to share with each Bank, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with SECTION 4.7 as if each Participant were a Bank. (e) Any Bank may, in the ordinary course of its business and in accordance with applicable law, at any time assign to one or more banks or other entities ("PURCHASER") all or any part of its rights ~~of any Participant only~~ and obligations hereunder. Such assignments shall be ~~derivative through~~ pursuant to Assignment Agreements substantially in the ~~Originating Lender~~ form of EXHIBIT G hereto. The consent of the Company and the Agent shall be required prior to any assignment becoming effective 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~~ respect to the ~~other Lenders~~Purchaser which is not a Bank or an Affiliate thereof; provided, ~~Agent~~however, ~~Borrower~~that if a Default has occurred and is continuing, the ~~Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect~~ consent of the ~~Obligations~~Company shall not be required. ~~No Participant~~ Such consent shall ~~have~~ not be unreasonably withheld or delayed. Each such assignment shall be in an amount not less than the ~~right to participate directly in~~ lesser of (i) $10,000,000 or (ii) the ~~making~~ remaining amount of ~~decisions by~~ the ~~Lenders among themselves~~assigning Bank's Commitment (calculated as the date of such assignment). (f) ~~In connection~~ Upon (i) the delivery to the Agent of a notice of assignment, substantially in the form attached as Exhibit "I" to EXHIBIT G hereto (a "NOTICE OF ASSIGNMENT"), together with any consents required by SUBSECTION (e) above, and (ii) payment of a $2,500 fee to the Agent for processing such assignment, such assignment ~~or participation or proposed assignment or participation or any grant~~ shall become effective on the effective date specified in such Notice of Assignment. The Notice of Assignment shall contain a representation by the Purchaser to the effect that none of the consideration used to make the purchase of the Commitment and Loans under the applicable Assignment Agreement are "plan assets" as defined under ERISA and that the rights and interests of the Purchaser in and under this Agreement will not be "plan assets" under ERISA. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Bank party to this Agreement and shall have all rights and obligations of a ~~security interest in~~Bank hereunder, to the same extent as if it were an original party hereto, and no further consent or ~~pledge of~~action by the Company, the Banks or the Agent shall be required to release the transferor Bank with respect to the percentage of its ~~rights under~~ Commitment and ~~interest in~~ Loans assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this ~~Agreement~~SECTION 11.6, the transferor Bank, the Agent and the Company shall make appropriate arrangements so that a replacement Note is issued to such transferor Bank and a new Note or, as appropriate, a ~~Lender may~~replacement Note, ~~subject~~ is issued to ~~the provisions of Section 17.9~~such Purchaser, ~~disclose all documents and information which it now or hereafter may have relating~~ in each case in principal amounts reflecting their Commitment, as adjusted pursuant to ~~Borrower and its Subsidiaries and their respective businesses~~such assignment. (g) ~~Any other provision in this Agreement notwithstanding,~~ The Company authorizes each Bank to disclose to any ~~Lender may at any time create a security interest in,~~ Participant or ~~pledge, all~~ Purchaser or any ~~portion~~ other Person acquiring an interest hereunder by operation of ~~its rights under~~ law (each a "TRANSFEREE") and ~~interest~~ any prospective Transferee any and all information in ~~this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A~~ such Bank's possession concerning the creditworthiness of the ~~Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24,~~ Company and ~~such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause~~ its Subsidiaries; provided that each Transferee and prospective Transferee agrees to be ~~maintained, a register (the “Register”) on which it enters the name and address~~ bound by SECTION 11.10 of each Lender as the registered owner of one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 Registerthis Agreement. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Revolving Credit Agreement (Oea Inc /De/)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Revolving Credit Lender may sell, transfer, negotiate or assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations hereunder (including all of ~~such Lender hereunder~~ its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the ~~extent that~~ Revolving Loans, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Swing Loans and the Letters of Credit); provided, however, that ~~Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until~~ (i) ~~written notice~~ if any such assignment shall be of the assigning Revolving Credit Lender's Revolving Credit Outstandings and Revolving Credit Commitments, such assignment shall cover the same percentage of such Revolving Credit Lender's Revolving Credit Outstandings and Revolving Credit Commitments, (ii) the 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 assignor's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the 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 (iii) if such Eligible Assignee is not, prior to the date of such assignment, ~~together with payment instructions~~a Lender or an Affiliate or Approved Fund of a Lender, ~~addresses, and related information with respect~~ such assignment shall be subject to the ~~Assignee, have been given to Borrower and~~ prior consent of the Administrative Agent ~~by such Lender~~ and the ~~Assignee~~Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required (iix) for any assignment occurring when any Event of Default shall have occurred and be continuing and (y) for any assignment by any Affiliate of the Administrative Agent made within 15 Business Days after the Closing Date of its Revolving Credit Commitment held on the Closing Date. (b) The parties to each such ~~Lender~~ assignment shall execute and deliver to the Administrative Agent, for its ~~Assignee have delivered to Borrower~~ acceptance and ~~Agent~~ recording in the Register, an Assignment and ~~Acceptance and Agent has notified~~ Acceptance, together with any Revolving Credit Note (if the assigning ~~Lender~~ Revolving Credit Lender's Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon the execution, delivery, acceptance and recording in the Register of ~~its receipt thereof~~ any Assignment and Acceptance 108 and, other than in ~~accordance with~~ respect of assignments made pursuant to Section ~~13.1(b~~2.17 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), ~~and (iii) unless waived~~ the receipt by ~~Agent,~~ the ~~assigning Lender or Assignee has paid to~~ Administrative Agent ~~for Agent’s separate account a processing~~ from the assignee of an assignment fee in the amount of $~~3,500. (b) From~~ 3,500 from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) the ~~Assignee~~ 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, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Revolving Credit Lender ~~under the Loan Documents~~and, if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the ~~assigning Lender~~ Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations ~~hereunder and~~ under ~~the other Loan Documents~~ this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except ~~with respect to Section 10.3~~for those surviving the payment in full of the Obligations) and be released from ~~any future~~ its obligations under ~~this Agreement~~ the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender’s 's rights and obligations under ~~this Agreement and~~ the ~~other~~ Loan Documents, such Revolving Credit Lender shall cease to be a party ~~hereto~~ hereto). (c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and ~~thereto~~Acceptance delivered to and accepted by it and shall record in the Register the names and addresses of the Lenders and Issuers and the principal amount of the Loans and Reimbursement Obligations owing to each Lender from time to time and the Revolving Credit Commitments of each Lender. Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register. (d) Upon its receipt of an Assignment and Acceptance executed by an assigning Revolving Credit Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record or cause to be recorded 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, if requested by such assignee, execute and deliver to the Administrative Agent, new Revolving Credit Notes to the order of such assignee in an amount equal to the Revolving Credit Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Revolving Credit Lender has surrendered any Revolving Credit Note for exchange in connection with the assignment and has retained Revolving Credit Commitments hereunder, new Revolving Credit Notes to the order of the assigning Revolving Credit Lender in an amount equal to the Revolving Credit Commitments retained by it hereunder. Such new Revolving Credit Notes shall be dated the same date as the surrendered Revolving Credit Notes and be in substantially the form of Exhibit B (Form of Revolving Credit Note). (e) In addition to the other assignment rights provided in this Section 11.2, each Revolving Credit Lender may do each of the following: (i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan that such Revolving Credit Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Revolving Credit Lender to make such Loans thereunder, provided, however, that (x) nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement) and (y) such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the holder of the Obligations for all purposes hereunder; and (ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) without notice to or consent of the Administrative Agent or the Borrower, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without consent of the Administrative Agent or the Borrower, (1) any holder of, or trustee for the benefit of, the holders of such Revolving Credit Lender's Securities and (2) any Special Purpose Vehicle to which such Revolving Credit Lender has granted an option pursuant to clause (i) above; provided, however, that ~~nothing contained herein~~ no such assignment or grant shall release ~~any assigning~~ such Revolving Credit Lender from any of its obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto hereunder except as ~~follows:~~ expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.2 other than ~~as provided~~ this clause (e) or clause (f) below. Each party hereto acknowledges and agrees 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 debt of any such ~~Assignment and Acceptance~~Special Purpose Vehicle, such ~~assigning Lender makes no representation~~ party shall not institute against, or ~~warranty and assumes no responsibility with respect~~ join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this clause (e) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). The terms of the designation of, or assignment to, such Special Purpose Vehicle shall not restrict such Lender's ability to, or grant such Special Purpose Vehicle the right to, consent to any ~~statements, warranties~~ amendment or ~~representations made in or in connection with~~ waiver to this Agreement or any other Loan Document or to the ~~execution, legality, validity, enforceability, genuineness, sufficiency or value~~ departure by the Borrower from any provision of this Agreement or any other Loan Document ~~furnished pursuant hereto~~without the consent of such Special Purpose Vehicle except, ~~(ii) such assigning Lender makes no representation or warranty~~ as long as the Administrative Agent and ~~assumes no responsibility with respect~~ the Lenders, Issuers and other Secured Parties shall continue to, and shall be entitled to ~~the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto~~continue to, ~~(iii) such Assignee confirms that it has received a copy of this Agreement, together~~ deal solely and directly with such ~~other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into~~ Lender in connection with such ~~Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon 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~~ 's obligations under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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)~~extent any such consent would reduce the principal amount of, or the rate of interest on, any Obligations, amend 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. clause (e) ~~Any Lender may at~~ or postpone any ~~time sell~~ scheduled date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to ~~one or more commercial banks, financial institutions, or other Persons~~ the benefits of Sections 2.15 (~~a “Participant”~~Capital Adequacy) ~~participating interests in all or any portion~~ and 2.16 (Taxes) and of ~~its Obligations, its Commitment, and the other rights and interests of that Lender~~ Section 2.14(d) (~~the “Originating~~ Illegality) as if it were such Lender~~”) hereunder and under the other Loan Documents~~; provided, however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be obligated to make under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall have no direct right to enforce any of the terms of this Agreement against the Borrower, the Administrative Agent or the other Lenders. (f) Each Lender may sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and 110 obligations with respect to the Revolving Loans and Letters of Credit). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or other modifications of any provision of any Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) reduce the ~~Originating Lender shall remain a “Lender” for~~ amount, or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such participant under the Loan Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the release of all ~~purposes~~ or substantially all of ~~this Agreement~~ the Collateral other than in accordance with Section 10.8(b) (Concerning the Collateral and the ~~other~~ Collateral Documents). In the event of the sale of any participation by any Lender, (w) such Lender's obligations under the Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (iix) ~~the Originating~~ such Lender shall remain solely responsible to the other parties for the performance of such obligations, (~~iii~~y) such Lender shall remain the holder of such Obligations for all purposes of this Agreement and (z) the Borrower, ~~Agent,~~ the Administrative Agent and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s 's rights and obligations under this ~~Agreement~~ Agreement. Each participant shall be entitled to the benefits of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality) as if it were a Lender; provided, however, that anything herein to the ~~other Loan Documents~~contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.15 (ivCapital Adequacy), 2.16 (Taxes) no or 2.14(d) (Illegality) to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold and provided, further, that such participant in the rights and obligations of such Lender shall ~~transfer or grant any participating interest under which the Participant has the~~ have no direct 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 enforce any of the ~~Loan Documents) supporting~~ terms of this Agreement against the ~~Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of~~Borrower, 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, and (v) 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 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 Administrative Agent or the other ~~Loan Documents or~~ Lenders. (g) Any Issuer may at any ~~direct~~ time assign its rights as and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the ~~other Lenders, Agent,~~ Borrower, the ~~Collections of Borrower or its Subsidiaries~~Administrative Agent, 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~~ Issuer and ~~interest in this Agreement, a Lender may~~such Lender, subject to the provisions of Section ~~17.9, disclose all documents and information which it now or hereafter may have~~ 2.7(c) (Evidence of Debt) relating to ~~Borrower and its Subsidiaries and their respective businesses. (g) Any other provision~~ notations of transfer in ~~this Agreement notwithstanding,~~ the Register. If 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 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. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause Issuer ceases to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 hereunder 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 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), 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 virtue of any assignment ~~by a Lender~~ made pursuant to this Section 11.2, then, as of ~~all or any portion of its Term Loans to an Affiliate~~ the effective date 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 Lender sells participations in the Registered Loancessation, such ~~Lender, as a non-fiduciary agent on behalf~~ Issuer's obligations to Issue Letters of ~~Borrower,~~ Credit pursuant to Section 2.4 (Letters of Credit) shall ~~maintain (or cause~~ terminate and such Issuer shall be an Issuer hereunder only with respect to ~~be maintained) a register on which it enters the name~~ outstanding Letters 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~~ Credit issued prior to such participations) (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 Registerdate. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (WCI Steel, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender to an Eligible Transferee), and, so long as no Event of Default has occurred and is continuing, subject to the written consent of Parent, such consent not to be unreasonably withheld or ~~an Affiliate (other than individuals) of a Lender~~delayed, ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ -------- ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may -------- ------- continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to ~~Borrower~~ Parent and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to ~~Borrower~~ Parent and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to ~~Borrower~~Parent) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests ----------- in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents ------------------ (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ 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 of which Borrowers have received notice shall be deemed to have the right of ~~set~~ 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, ~~Borrower~~Borrowers, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses.~~Borrowers or Borrowers' business, subject to an agreement by the proposed recipient of such information to be bound by the provisions of Section 16.17(d) of this Agreement. ---------------- (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 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~~(S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Learningstar Corp)

Assignments and Participations. (a) ~~Any Lender may~~The Lenders (if all of the Lenders shall so agree) shall have the right, ~~with~~ without the ~~prior written~~ consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ the Borrower (so long as ~~no Event of Default exists, with the prior written consent of~~ Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other 's rights and obligations ~~of such Lender hereunder and~~ under the ~~other~~ Loan ~~Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall~~ Documents are not ~~apply to (x) an assignment or delegation by any Lender~~ adversely affected to any ~~other Lender or an Affiliate of any Lender or (y)~~ material extent), to consummate a ~~group of new Lenders~~Securitization. Furthermore, 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 assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the ~~rights and obligations~~ right, without the consent of ~~a Lender under~~ the ~~Loan Documents, and~~ Borrower (~~ii) the assigning Lender shall,~~ but subject 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~~provisions of this Section 10.9), ~~relinquish~~ to, sell, assign, otherwise transfer and/or participate its rights (except with respect to Section 10.3) and be released from any future 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 rights, interest and obligations under this Agreement and the other Loan Documents, in whole or in part, to any Person or Persons. The Borrower shall keep confidential all information relating to such proposed Securitization, assignment or participation and the identity of each potential holder of Securities, assignee or participant (except to the extent that if such information were Confidential Information and Borrower were a Lender that such Lender, pursuant to the provisions of Section 10.28, would be permitted to disclose the same). (b) Each assignee with respect to any Assignment (an "Assignee"), and the assigning Lender, shall execute and deliver an Assignment and Assumption Agreement substantially in the form of Exhibit A to that certain Co-Lender and Retained Interest Agreement among the Lenders and Agents, with (and subject to) the subscribed consent of the Administrative Agent and, to the extent expressly required hereby, the Borrower (an "Assignment and Assumption Agreement"); provided that if an Assignee is an Affiliate of such transferor Lender or was a Lender immediately prior to such assignment, no consent of the Administrative Agent or the Borrower shall be required; provided further that no Agent shall have any obligations to an Assignee until such Agent shall have received written notice of the name, address, telephone and facsimile numbers and Loan Commitment Percentage of such Assignee. Each Assignment shall be of a constant, and not a varying, percentage of all of the transferring Lender's rights and obligations under the Loan Documents. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any Assignment pursuant to this subsection (b), the transferor Lender, the Agents and the Borrower shall make appropriate arrangements so that, if required, a new Note(s) is issued to the Assignee and the prior Note(s) held by the transferor Lender is canceled. Notwithstanding anything in this Agreement to the contrary, after an Assignment by a Lender, (x) the "Lender" (prior to the Assignment) shall (1) continue to have the benefits of all indemnifications and (2) shall continue to have all other rights and obligations under the Loan Documents that such Lender had during the period such party was "Lender" hereunder to the extent such rights and obligations relate to such period and (y) the transferring Lender shall ~~cease~~ not be released from any liability of such Lender under the Loan Documents that arose prior to ~~be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including~~ such ~~assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignment. (c) ~~By executing and delivering an~~ On or prior to the effective date of any Assignment ~~and Acceptance~~contemplated hereby, if the Administrative Agent shall so require, the ~~assigning~~ transferor Lender ~~thereunder and~~ shall deliver to the ~~Assignee thereunder confirm to and agree with each other and the other parties hereto as follows:~~ Administrative Agent, at such Lender's own expense, (i) an endorsement to the Title Insurance Policy stating that the Assignment in question will not impair in any way the Lien of the Deed of Trust and (ii) such other ~~than~~ documents, instruments and other materials, including, without limitation, legal opinions, as ~~provided in such~~ the Administrative Agent shall reasonably deem necessary. (d) Unless an Event of Default shall then exist, no Lender shall consummate an Assignment ~~and Acceptance, such assigning Lender makes no representation~~ or ~~warranty and assumes no responsibility with respect~~ a Participation to any ~~statements, warranties~~ Competitor; provided that each such Lender shall be entitled to rely on a written statement from the proposed assignee or ~~representations made~~ participant that it is not a Competitor (without making any further inquiry or investigation) and no such Lender shall be liable to the Borrower or to any other Person if such Lender shall consummate an Assignment or Participation with a Person that shall in or fact be a Competitor notwithstanding the fact that such Person delivered such a written statement. (e) Notwithstanding any other provision contained in ~~connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of~~ this Agreement or any other 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 Borrower or the performance or observance by Borrower of~~ contrary, any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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~~ assign all or any portion of the Loan or the Notes held by it to any Federal Reserve Bank or the United States Treasury 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 transferor Lender from its ~~Obligations~~obligations hereunder. (f) Without the prior written consent of the Administrative Agent, ~~its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating~~ no Lender shall ~~remain~~ consummate a ~~“Lender” for all purposes~~ Participation to a Foreign Lender unless such Foreign Lender shall submit to the Administrative Agent the applicable Exemption/Reduction Forms in accordance with the provisions of ~~this Agreement and the other Loan Documents and the Participant receiving the participating~~ subsection 2.10(b). Each holder of a participation interest in the ~~Obligations~~Loan Documents (a "Participant") shall be entitled to receive all information received directly by the Lenders from the Borrower under this Agreement. After the effectiveness of any Participation, the ~~Commitments,~~ applicable Lender shall provide notice to the Borrower and the ~~other rights and interests~~ Agents of the ~~Originating Lender hereunder shall not constitute a “Lender” hereunder or under the~~ identity, address and 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) Borrower, 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 pertinent information pertaining 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, and (v) all amounts payable by Participant. The Borrower ~~hereunder shall be determined as~~ agrees that 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~~Default shall exist, then each Participant shall be deemed to have the right of ~~set off~~ setoff in respect of its participating interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a the Lender under this Agreement. The ~~rights of any~~ Borrower also agrees that each Participant ~~only~~ shall be ~~derivative through~~ entitled to the ~~Originating~~ benefits of subsections 2.10, 5.1(I) and 5.1(J) (subject to the limitations set forth in such subsections) with respect to its participation in the Loan outstanding from time to time. Notwithstanding any sale of a participation interest by a Lender, such Lender ~~with whom~~ shall remain fully responsible for the performance of all of its obligations under the Loan Documents and, except as otherwise expressly provided herein, no such Participant ~~participates and no Participant~~ shall ~~have~~ acquire any rights under this Agreement or except by and through the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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 party from which it ~~now or hereafter may have relating to Borrower and~~ acquired its ~~Subsidiaries and their respective businesses~~participation interest. (g) ~~Any other provision~~ Nothing contained in this Agreement ~~notwithstanding, any Lender may at any time create a security interest in~~shall prohibit, or ~~pledge~~shall be deemed to prohibit, ~~all~~ the Person that is any Agent from serving as Agent and concurrently being or any portion of its rights under and interest in this Agreement 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 lawbecoming a Participant and/or Lender. (h) The Administrative 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 one or both of the Term Loans (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 maintain records of all Assignments and Participations and, upon request therefor by any Agent or ~~any portion of its portion of each 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 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), 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 Term Loans 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~~ permit such Agent or Lender ~~sells participations in the Registered Loan, such Lender~~or Borrower, as ~~a non-fiduciary agent on behalf of Borrower~~applicable, ~~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~~ review 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 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 Registerrecords. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan Agreement (Las Vegas Sands Inc)

Assignments and Participations. (a) ~~Any~~ 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 ~~may~~and their respective successors and permitted 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 ~~Agent~~each Lender and any such assignment without the Lenders' prior written consent shall be null and void. (b) Subject to the conditions set forth in clause (c) below, ~~which~~ each Lender may assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to: (i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and (ii) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that (A) the consent of any Agent shall not be unreasonably withheld, ~~delayed~~conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or ~~conditioned~~deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, ~~and~~ conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default ~~exists~~has occurred and is continuing, ~~with~~ the ~~prior~~ Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written ~~consent of Borrower, which consent of Borrower~~ request therefor and (3) shall not be ~~unreasonably withheld~~required during the continuance of an Event of Default; provided, ~~delayed~~further, ~~or conditioned (provided~~ that no written consent of ~~Agent~~ the Agents or the Administrative Borrower shall be required (x) in connection with an any assignment ~~to a Person that is~~ by a Lender to any Agent or ~~an Affiliate (other than individuals) of a~~ any Lender, any ~~Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or~~ Affiliate of ~~a Loan Party shall be permitted to become an Assignee~~any Agent or any Lender or any Related Fund of any Agent or any Lender or (y) if such assignment is in connection with any merger, amalgamation, consolidation, sale, transfer, or other disposition of all or any substantial portion of the ~~Obligations,~~ business or loan portfolio of any Lender. (c) Assignments shall be subject to the ~~Commitments and~~ following additional conditions: (i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $100,000 in excess thereof (or the ~~other rights and obligations~~ remainder of such ~~Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent~~▇▇▇▇▇▇'s Commitment) ~~of $5,000,000~~ (except such minimum amount shall not apply to an assignment by a Lender to (xA) an ~~assignment~~ Agent or ~~delegation by any Lender to any other Lender or~~ a Lender, an Affiliate of ~~any~~ an Agent or a Lender or a Related Fund of an Agent or a Lender or (yB) a group of new Lenders, each of ~~which~~ whom is an Affiliate ~~of each other~~ or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, each (ii) The parties to each such ~~Lender~~ assignment shall execute and ~~its Assignee have delivered~~ deliver to ~~Borrower~~ the Administrative Agent (and ~~Agent an Assignment and Acceptance and Agent has notified~~ the ~~assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by~~ Revolving Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable), ~~payment of the required processing fee~~for its acceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, ~~the assigning Lender thereunder~~ and ~~the Assignee thereunder confirm to and agree with each other and the other~~ such 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 Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect shall deliver to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Administrative Agent, ~~such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at~~ for the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and benefit of the ~~other Loan Documents as are delegated to~~ Administrative Agent, by a processing and recordation fee of $5,000 (except the ~~terms hereof and thereof, together with~~ payment of such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder fee 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) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than required in connection with an assignment by a Lender ~~of all~~ to an Agent or ~~any portion of its portion of each Term Loan to~~ a Lender, an Affiliate of ~~such~~ an Agent or a Lender or a Related Fund of ~~such Lender~~ an Agent or a Lender), any forms and certificates required pursuant to Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and (iiii) ~~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~~ No such assignment shall be made to any Defaulting Lender, any Loan Party, any Permitted Holder (or ~~sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment~~ other direct 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 indirect equity holder of the ~~registered note~~Parent), ~~if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the~~ any holder of ~~such registered note~~Subordinated Indebtedness or any of their respective Affiliates, ~~whereupon~~in each case, at without the ~~request~~ prior written consent 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), 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 Term Loans 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 RegisterAdministrative Agent. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Financing Agreement (Mondee Holdings, Inc.)

Assignments and Participations. (a) ~~Any Lender may~~No Seller Party shall sell, ~~with~~ assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties, in each case, under this Agreement or any other Repurchase Document, as applicable, without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent shall not be unreasonably withheld~~Seller or any other Seven Hills Party, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment sell participations to ~~a Person that is a Lender or an Affiliate~~ any Eligible Assignee (other than ~~individuals~~a natural person or a Seven Hills Party) of (a ~~Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an~~ “~~Assignee~~Participant”~~; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee~~) in all or any portion of ~~the Obligations, the Commitments and the other~~ Buyer’s rights ~~and~~ and/or obligations ~~of such Lender hereunder and~~ under the ~~other Loan~~ Repurchase Documents~~, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to~~ ; provided that (x) ~~an assignment~~ if a Default or ~~delegation by any Lender~~ Event of Default has occurred and is continuing, Buyer may sell participations to any ~~other Lender~~ Person at any time without consent, notice or ~~an Affiliate~~ restriction of any ~~Lender or~~ kind, other than the requirements set forth in clause (iv) below, and (y) ~~a group~~ so long as no Default or Event of ~~new Lenders~~Default has occurred and is continuing: (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, ~~each of which is an Affiliate of each other or a Related Fund~~ (ii) Buyer shall remain solely responsible to Seller for the performance of such ~~new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided~~obligations, ~~however, that Borrower and Agent may~~ (iii) Seller shall continue to deal solely and directly with ~~such Lender~~ Buyer in connection with Buyer’s rights and obligations under the ~~interest so assigned~~ Repurchase Documents and (iv) each Participant agrees to ~~an Assignee until (i) written notice~~ be bound by the confidentiality provisions set forth in Section 18.10. So long as no Default or Event of ~~such assignment~~Default has occurred and is continuing, ~~together with payment instructions~~no Participant shall have any right to approve any amendment, ~~addresses, and related information~~ waiver or consent with respect to any Repurchase Document, except to the ~~Assignee~~extent that the Repurchase Price or Price Differential of any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed, nor shall a Participant have the right to approve decisions with respect to Purchased Assets, determine whether any Asset is an Eligible Asset or whether to purchase an Eligible Asset or determine the Market Value of a Purchased Asset. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, including the requirements under Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it was a Buyer and had acquired its interest by assignment pursuant to Section 18.08(c), provided that such Participant shall not be entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been ~~given~~ entitled to ~~Borrower~~ receive, except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by a Governmental Authority or compliance by the participating Buyer with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over such participating Buyer, in each case made or issued after the Participant acquired the applicable participation. To the extent permitted by Requirements of Law, each Participant shall also be entitled to the benefits of Sections 10.02(i) and ~~Agent~~ 18.17 to the same extent as if it was a Buyer and had acquired its interest by assignment pursuant to Section 18.08(c). (c) Buyer may at any time, without the consent of any Seller Party but upon notice to Seller, sell and assign all or any portion of all of the rights and obligations of Buyer under the Repurchase Documents to any Eligible Assignee proposed by Buyer; provided that if a Default or Event of Default has occurred and is continuing, Buyer may enter into any such ~~Lender~~ sale and ~~the Assignee~~assignments with any Person at any time without consent, ~~(ii)~~ notice or restriction of any kind. Each such ~~Lender and its Assignee have delivered~~ assignment shall be made pursuant to ~~Borrower and Agent~~ an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit E (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the Assignee thereunder~~ each such assignee shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the related assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.08(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.08(b). (d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller and any such cooperation shall be at no cost to Seller. (e) Subject to the terms and conditions of Sections 18.08(b) and 18.08(c), Buyer shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesEligible Assignee. (f) ~~In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the assignees that become Parties hereto and, with respect to each such assignee, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The Register shall be available for inspection by the Parties at any reasonable time and from time to time upon reasonable prior notice. (g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register. (j) Agent shall make a copy~~ Register as the owner of the ~~Register (and each Lender shall make a copy~~ applicable participation for all purposes of ~~its Participant Register in~~ this Agreement notwithstanding any notice to the ~~extent it has one) available for review by Borrower from time to time as Borrower may reasonably request~~contrary.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (Seven Hills Realty Trust)

Assignments and Participations. (a) ~~Any Lender may~~None of Guarantor, ~~with~~ Pledgor or Seller shall sell, assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties under this Agreement or any other Repurchase Document without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent shall not be unreasonably withheld~~Seller, ~~delayed~~Pledgor, Sponsor or ~~conditioned~~Guarantor, and at Buyer’s sole cost and expense, sell participations to any Eligible Assignee (other than a natural person or Seller, Sponsor, Pledgor, any Intermediate Entity, Guarantor or any of their respective Affiliates) (a “Participant”) in all or any portion of Buyer’s rights and/or obligations under the Repurchase Documents; provided that (x) if a monetary or material non- monetary Default or any an Event of Default has occurred and is continuing, Buyer may sell participations to any Person at any time without consent, notice or restriction of any kind, other than the requirements set forth in clause (iv) below, and (y) so long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing: (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (ii) Buyer shall remain solely responsible to Seller for the performance of such obligations, (iii) Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents, (iv) each Participant agrees to be bound by the confidentiality provisions set forth in Section 18.09, and (v) provided that, so long as no Event of Default exists, Buyer shall retain ultimate decision-making authority under the Repurchase Documents. So long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing, no Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the ~~prior written consent~~ extent that the Repurchase Price or Price Differential of ~~Borrower~~any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, ~~which consent of Borrower~~ including the requirements under Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.07(c), provided that such Participant shall not be ~~unreasonably withheld~~entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been entitled to receive, ~~delayed~~except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of (c) Buyer may at any time, ~~or conditioned (provided that no written~~ without the consent of ~~Agent~~ Seller, Pledgor, Sponsor or ~~Borrower shall be required in connection with an assignment~~ Guarantor but upon notice to ~~a Person that is a Lender or an Affiliate (other than individuals) of a Lender~~Seller, ~~any Lender may~~ and at Buyer’s sole cost and expense, sell and assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of all of the ~~Obligations, the Commitments and the other~~ rights and obligations of ~~such Lender hereunder and~~ Buyer under the ~~other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender~~ Repurchase Documents to any ~~other Lender~~ Eligible Assignee proposed by Buyer; provided that if a monetary or ~~an Affiliate~~ material non-monetary Default or any Event of Default has occurred and is continuing, Buyer may enter into any such sale and assignments with any Person at any time without consent, notice or restriction of any ~~Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of~~ kind. Each such ~~new Lender~~ assignment shall be made pursuant to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit F (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the Assignee thereunder~~ each such assignee shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the related assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.07(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.07(b). (d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller and shall be at no cost to Seller. (e) Buyer, at Buyer’s sole cost and expense, shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents to any ~~statements~~Eligible Assignee so long as, ~~warranties~~ prior to the occurrence and during the continuance of a monetary or ~~representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement~~ material non-monetary Default or any ~~other Loan Document furnished pursuant hereto~~Event of Default, ~~(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect~~ Buyer shall remain solely responsible to ~~the financial condition of Borrower or~~ Seller for the performance ~~or observance~~ by ~~Borrower of any~~ Buyer of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Repurchase Documents; provided, however, 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 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) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the assignees that become Parties hereto and, with respect to each (~~the “Register”~~g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register. (j) Agent shall make a copy~~ Register as the owner of the ~~Register (and each Lender shall make a copy~~ applicable participation for all purposes of ~~its Participant Register in~~ this Agreement notwithstanding any notice to the ~~extent it has one) available for review by Borrower from time to time as Borrower may reasonably request~~contrary.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (BrightSpire Capital, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may sell, transfer, negotiate or assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations hereunder (including all of ~~such Lender hereunder~~ its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the ~~extent that~~ Term Loans, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, that ~~Borrower~~ (i)(A) if any such assignment shall be of the assigning Lender's Revolving Credit Outstandings and ~~Agent may continue to deal solely and directly with~~ Revolving Credit Commitments, such ~~Lender in connection with~~ assignment shall cover the ~~interest so assigned to an Assignee until (i) written notice~~ same percentage of such ~~assignment~~Lender's Revolving Credit Outstandings and Revolving Credit Commitment (B) if any such assignment shall be of the assigning Lender's Optional Currency Loans and Optional Currency Commitments, ~~together with payment instructions~~such assignment shall cover the same percentage of such Lender's Optional Currency Loans and Optional Currency 110 Commitments and (C) if any such assignment shall be of the assigning Lender's Term Loans and Term Loan Commitment, ~~addresses,~~ such assignment shall cover the same percentage of such Lender's Term Loans and ~~related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee~~Term Loan Commitment, (ii) the aggregate amount being assigned pursuant to each such ~~Lender and its Assignee have delivered to Borrower and Agent an~~ 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 $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the Administrative Agent ~~has notified the assigning~~ or (B) if such assignment is being made to a Lender or an Affiliate or Approved Fund of ~~its receipt thereof in accordance with Section 13.1(b)~~such Lender, and (iii) ~~unless waived by~~ 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 the prior consent of the Administrative Agent and the Required Revolving Lenders in the case of an assignment with respect to a Revolving Loan and the Borrower (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing. Any such assignment need not be ratable as among the Term Loan Facility 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 any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. In addition, any Lender or Eligible Assignee ~~has paid~~ assuming a Revolving Credit Commitment in connection with a Facility Increase shall execute an assumption agreement in accordance with Section 2.19 (Facility Increase). Upon the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.18 (Substitution of Lenders) and Section 11.1(c) (Amendments, Waivers, Etc.), the receipt by the Administrative Agent ~~for Agent’s separate account a processing~~ from the assignee of an assignment fee in the amount of $~~3,500. (b) From~~ 3,500 from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) the ~~Assignee~~ 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, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender, and if such Lender ~~under the Loan Documents~~were an Issuer, of such Issuer hereunder and thereunder, and (ii) the ~~assigning Lender~~ assignor thereunder shall, to the extent that rights and obligations ~~hereunder and~~ under ~~the other Loan Documents~~ this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except ~~with respect to Section 10.3~~for those surviving the payment in full of the Obligations) and be released from ~~any future~~ its obligations under ~~this Agreement~~ the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (~~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 Agreement and~~ the ~~other~~ Loan Documents, such Lender shall cease to be a party ~~hereto~~ hereto). (c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and ~~thereto~~Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Issuers and the Commitments of and principal amount of the Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each Lender and each Issuer from time to time (the "Register"); . Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Register as a Lender or as an Issuer, as the case may be, for all purposes of this Agreement. The Register shall 111 be available for inspection by the Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Notwithstanding anything to the contrary contained in clause (b) above, the Loans (including the Notes evidencing such Loans), any Revolving Loans deemed to have been made pursuant to Section 2.3(e) (Swing Loans), Reimbursement Obligations and undivided participation interests in Swing Loans purchased pursuant to Section 2.3(f) (Swing Loans) are registered obligations and the right, title, and interest of the Lenders and the Issuers, as the case may be, and their assignees in and to such Loans, deemed Revolving Loans, Reimbursement Obligations and undivided participation interests in Swing Loans, as the case may be, shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender's or a registered assignee's right title and interest in and to the related Loan, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 11.2 shall be construed so that the Loans, deemed Revolving Loans, Reimbursement Obligations and undivided participation interests in Swing 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 Code and any related regulations (or any successor provisions of the Code or such regulations). Solely for purposes of this clause (d) and for tax purposes only, the Administrative Agent shall act as the Borrower's agent for purposes of maintaining the Register and such notations of transfer in the Register, subject to the standard of care set forth in the first sentence of Section 10.2(b) (Administrative Agent's Reliance, Etc.). (e) 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, (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, if requested by such assignee, execute and deliver to the Administrative Agent new Notes to the order of such assignee in an amount equal to the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B-1 (Form of Revolving Credit Note) or Exhibit B-2 (Form of Term Note), as applicable. (f) In addition to the other assignment rights provided in this Section 11.2, each Lender may (i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the extent that such Loans are made) the obligation of such Lender to make such Loans thereunder, provided, however, that nothing ~~contained~~ herein shall ~~release~~ constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder and no such Special Purpose Vehicle shall be liable for any ~~assigning Lender from obligations that survive~~ indemnity or other Obligation (other than the ~~termination~~ making of Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement), and (ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (x) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrower or the Administrative Agent, (y) any trustee for the benefit of the holders of such ~~assigning~~ Lender’s 's Securities and (z) to any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above; and provided, further, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above. Each party hereto acknowledges and agrees 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 debt of any such Special Purpose Vehicle, such party shall not institute against, or join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations). In addition, each Lender granting a Special Purpose Vehicle the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder, (i) shall keep a register, meeting the requirements of Treasury Regulations Section 5f.103-1(c), of each Special Purpose Vehicle which has funded all or any part of any Loans that such Lender would otherwise be obligated to make pursuant to this Agreement, specifying such Special Purpose Vehicle's entitlement to payments of principal and interest with respect to such Loans and (ii) shall collect, prior to the time such Special Purpose Vehicle receives payments with respect to such funded Loans, from each such Special Purpose Vehicle the appropriate forms, certificates and statements described in Section 2.17 (Taxes) (and updated as required by Section 2.17 (Taxes)) as if such Special Purpose Vehicle were a Lender under Section ~~15 and Section 17.9(a~~2.17 (Taxes). (cg) ~~By executing and delivering an Assignment and Acceptance, the assigning~~ Each Lender ~~thereunder and the Assignee thereunder confirm~~ may sell participations 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~~ one or ~~warranty and assumes no responsibility with respect to any statements, warranties or representations made~~ more Persons in or ~~in connection with this Agreement~~ to all or a portion of its rights and obligations under the ~~execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other~~ Loan ~~Document furnished pursuant hereto,~~ Documents (~~ii) such assigning Lender makes no representation or warranty~~ including all its rights and ~~assumes no responsibility~~ obligations with respect to the ~~financial condition~~ Term Loans, Revolving Loans and Letters of ~~Borrower~~ Credit). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or ~~the performance or observance by Borrower~~ other modifications of any provision of ~~its obligations~~ any Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights such Lender may have under ~~this Agreement~~ or ~~any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy~~ in respect of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents ~~as are delegated~~ (including the right to ~~Agent~~enforce the obligations of the Loan Parties), by except if any such amendment, waiver or other modification or consent would (i) reduce the ~~terms hereof and thereof~~amount, ~~together with~~ or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such ~~powers as are reasonably incidental thereto~~participant under the Loan Documents, ~~and~~ to which such participant would otherwise be entitled under such participation or (viii) ~~such Assignee agrees that it will perform~~ result in the release of all or substantially all of the ~~obligations which by~~ Collateral other than in accordance with Section 10.8(b) (Concerning the ~~terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt~~ Collateral and the Collateral Documents). In the event of the ~~required processing fee~~sale of any participation by any Lender, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce (w) 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 the other rights and interests of that Lender (the “Originating Lender~~”) hereunder and~~ 's obligations under the ~~other Loan Documents; provided, however, 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 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, (iix) ~~the Originating~~ such Lender shall remain solely responsible to the other parties for the performance of such obligations, (~~iii~~y) such Lender shall remain the holder of such Obligations for all purposes of this Agreement and (z) the Borrower, ~~Agent,~~ the Administrative Agent and the other Lenders shall continue to deal solely and directly with ~~the Originating~~ such Lender in connection with ~~the Originating~~ such Lender’s 's rights and obligations under this ~~Agreement and the other Loan Documents, (iv) no Lender~~ Agreement. Each participant 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 be entitled to the ~~extent~~ benefits of Sections 2.16 (Capital Adequacy) and 2.17 (Taxes) and of Section 2.15(d) (Illegality) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.16 (Capital Adequacy), 2.17 (Taxes) or Section 2.15(d) (Illegality) to the participants in the rights and obligations of any Lender (together with such ~~amendment to~~Lender) any payment in excess of the amount the Borrower would have been obligated to pay to such Lender in respect of such interest had such participation not been sold. In addition, ~~or consent or waiver~~ each Lender selling a participation to a participant under this Section 11.2(g) (i) shall keep a register, meeting the requirements of Treasury Regulations Section 5f.103-1(c), of each participant, specifying such participant's entitlement to payments of principal and interest 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 Lenderparticipation, and (vii) ~~all amounts payable~~ shall collect, prior to the time such participant receives payments with respect to such participations, from each such participant the appropriate forms, certificates and statements described in Section 2.17 (Taxes) (and updated as required by ~~Borrower hereunder shall be determined~~ Section 2.17 (Taxes)) 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 participant were ~~owing directly to it as~~ a Lender under ~~this Agreement. The~~ Section 2.17 (Taxes). (h) Any Issuer may at any time assign its rights of and obligations hereunder to any ~~Participant only shall be derivative through the Originating~~ other Lender ~~with whom such Participant participates~~ by an instrument in form and ~~no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as~~ substance satisfactory to the ~~other Lenders, Agent,~~ Borrower, the ~~Collections of Borrower or its Subsidiaries~~Administrative Agent, 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~~ Issuer and ~~interest in this Agreement, a Lender may~~such Lender, subject to the provisions of under Section ~~17.9, disclose all documents and information which it now or hereafter may have~~ 11.2(c) relating to ~~Borrower and its Subsidiaries and their respective businesses. (g) Any other provision~~ notations of transfer in ~~this Agreement notwithstanding,~~ the Register. If 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 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. (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause Issuer ceases to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of one or both of the Term Loans (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 each 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 hereunder 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 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), 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 virtue of any assignment ~~by a Lender~~ made pursuant to this Section 11.2, then, as of ~~all or any portion of its Term Loans to an Affiliate~~ the effective date of such ~~Lender or a Related Fund~~ cessation, such Issuer's obligations to Issue Letters of Credit pursuant to Section 2.5 (Letters of Credit) shall terminate and such ~~Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf~~ Issuer shall be an Issuer hereunder only with respect to outstanding Letters of ~~Borrower, shall maintain a register comparable~~ Credit issued prior to ~~the Register~~such date. (i) In For purposes of this Section 11.2, with respect to each Letter of Credit, if an Issuer transfer its rights with respect to the ~~event that~~ Borrower's Reimbursement Obligation with respect to a ~~Lender sells participations~~ Letter of Credit, such Issuer shall give notice of such transfer to the Administrative Agent for notation 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Hayes Lemmerz International Inc)

Assignments and Participations. ~~(a) Any Lender may,~~ The Lenders will be permitted to assign loans and commitments under the Facilities with the ~~prior written~~ consent of ~~Agent~~the Borrower (not to be unreasonably withheld or delayed and as to which, ~~which~~ in the case of the Term Facility, the Borrower will be deemed to have consented 10 business days after any request for consent if the Borrower has not otherwise responded by such date); provided that such consent of ~~Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with~~ the ~~prior written consent of Borrower, which consent of~~ Borrower shall not be ~~unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be~~ required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) ~~written notice of such assignment, together with payment instructions, addresses, and related information with respect to~~ under the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance andRevolving Facility, if ~~applicable, payment of~~ such assignment is made to another Lender under the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations Revolving Facility or an affiliate or approved fund of a Lender under the ~~Loan Documents~~Revolving Facility, ~~and~~ (ii) ~~the assigning Lender shall, to the extent that rights and obligations hereunder and~~ under the ~~other Loan Documents have been assigned by it pursuant~~ Term Facility, if such assignment is made to ~~such Assignment~~ another Lender or an affiliate or approved fund of a Lender, or (iii) after the occurrence and ~~Acceptance~~during the continuance of an event of default relating to payment default or bankruptcy. All assignments will also require the consent of the Agent (subject to exceptions consistent with the Documentation Precedent), ~~relinquish its rights (except~~ and, with respect to ~~Section 10.3) and~~ assignment under the Revolving Facility, the Issuing Bank, not to be ~~released from any future obligations under this Agreement (and~~ unreasonably withheld or delayed. Each assignment, in the case of the Term Facility, will be in an ~~Assignment and Acceptance covering all or the remaining portion~~ amount of an ~~assigning Lender’s rights~~ integral multiple of $1,000,000. Each assignment, in the case of the Revolving Facility, will be in an amount of an integral multiple of not less than $5,000,000 and ~~obligations under this Agreement~~ integral multiples of $1,000,000 in excess thereof. Assignments will be by novation and ~~the other Loan Documents, such Lender shall cease~~ will not be required to be pro rata between the Facilities. The Agent will receive a ~~party hereto~~ processing and ~~thereto); provided~~recordation fee of $3,500, ~~however~~payable by the assignor and/or the assignee, ~~that nothing contained herein~~ with each assignment. The Lenders will be permitted to sell participations in loans and commitments subject to the restrictions set forth herein, in the Commitment Letter and consistent with the Documentation Precedent. Voting rights of participants (i) shall ~~release any assigning Lender from obligations that survive the termination~~ be limited to matters in respect of ~~this Agreement~~(a) increases in commitments of such participant, ~~including~~ (b) reductions of principal, interest or fees payable to such ~~assigning Lender’s obligations under Section 15 and Section 17.9(a).~~ participant, (c) ~~By executing and delivering an Assignment and Acceptance,~~ extensions of final maturity or interest or fee payment dates or scheduled amortization of the ~~assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided~~ loans or commitments in which 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, participant participates and (vid) ~~such Assignee agrees that it will perform~~ releases of all or substantially all of the ~~obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt~~ value 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 Commitments arising therefrom. The 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 institutionsGuarantees, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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) for clarification purposes, shall not include the right to vote on waivers of defaults or events of default. Notwithstanding the foregoing, assignments (and, to the extent the Disqualified Lender list is made available to all Lenders, participations) shall not be permitted to Disqualified Lenders (the list of which may be updated from time to time after the Closing Date with respect to competitors of the Borrower and will remain on file with the Agent and not subject to further disclosure); provided that the foregoing shall not apply retroactively to disqualify any parties that have previously acquired an assignment or ~~sale~~ participation interest to the extent such party was not a Disqualified Lender at the time 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~~ applicable assignment or ~~sale~~ participation, as the case may be; provided, further, that the Agent shall have no duties or responsibilities for monitoring or enforcing prohibitions 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~~participation to Disqualified Lenders or Affiliated Lenders. Any assigning Lender shall, ~~whereupon~~in connection with any potential assignment, ~~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~~ provide 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),~~ 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its ~~Participant Register in~~ request (including the name of the prospective assignee) concurrently with its delivery of the same request to the Agent irrespective of whether or not an event of default relating to payment default or bankruptcy has occurred and is continuing. Assignments shall not be deemed non-pro rata payments. Non-pro rata prepayments will be permitted to the extent ~~it has one~~required to permit “extension” transactions and “replacement” facility transactions (with existing and/or new Lenders), subject to customary restrictions consistent with the Documentation Precedent. Assignments to the Sponsor and its affiliates (other than Redwood Holdings and its subsidiaries, except as set forth below, and other than natural persons) ~~available for review by Borrower from time~~ (each, an “Affiliated Lender”) shall be permitted, subject only to ~~time as Borrower may reasonably request.~~the following limitations:

Appears in 1 contract

Sources: Additional Initial Lender Agreement (Aspen Merger Sub, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ratable portion of all, of the ~~Obligations, the Commitments~~ Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except that such minimum amount shall not apply to ~~(x) an assignment or delegation by any Lender to any other Lender or~~ an Affiliate of a Lender or to a Related Fund, or any Lender simultaneously assigning and delegating all of its Obligations hereunder and under the other Loan Documents to an Assignee or ~~(y) a~~ an Affiliated group of ~~new Lenders, 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 assigned to all such new Lenders is at least $5,000,000~~Assignees); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500~~. (b) From and after~~ . Anything contained herein to the ~~date that Agent notifies~~ contrary notwithstanding, the ~~assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable,~~ payment of ~~the~~ any fees shall not be required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee ~~thereunder confirm to and agree with each other and the other parties hereto as follows:~~ need not be an Eligible Transferee if (ix) ~~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~~ assignment is in connection with ~~this Agreement or the execution~~any merger, ~~legality~~consolidation, ~~validity~~sale, enforceability, genuineness, sufficiency or value of this Agreement or any other 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 institutionstransfer, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 disposition of all or any substantial portion of ~~its portion~~ the business or loan portfolio of ~~each Term Loan to~~ the assigning Lender, or (y) the assignee is an Affiliate (other than individual(s)) of ~~such~~ a 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 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), 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 Term Loans 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 RegisterFund. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Hawaiian Holdings Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except ~~such~~ that in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and Loans at the time owing to it under the Loan Documents, no minimum amount need be assigned, and in connection with simultaneous assignments to two or more related Approved Funds, such Approved Funds shall ~~not apply~~ be treated as one assignee for purposes of determining compliance with the minimum assignment amount referred to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000above); provided, however, that (w) a Lender may not assign all or any portion of the Obligations or the Commitments to Borrower, any Permitted Holder or any Affiliate thereof, (x) the prior written consent of Agent (not to be unreasonably withheld, delayed or conditioned) shall be required prior to any such assignment by a Lender to another Person that is not a Lender, an Affiliate of a Lender or an Approved Fund, (y) so long as no Event of Default has occurred and is continuing, the prior written consent of Borrower (not to be unreasonably withheld, delayed or conditioned) shall be required prior to any such assignment by a Lender to another Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Agent within 5 Business Days after having received notice thereof, and (z) Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its - 104 - Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 16 and Section ~~17.9(a)~~17.7 of this Agreement. The Assignee shall execute and deliver to the Agent and the Borrower the forms described in Section 16.11 applicable to it. (c) The Agent, acting solely for this purpose as a non-fiduciary agent for the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). No assignment shall be effective unless it has been recorded in the Register as provided in this Section 14.1(c). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agent, and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. This Section shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions). Information contained in the Register with respect to any Lender shall be available for inspection by such Lender at any reasonable time and from time to time upon reasonable prior notice; information contained in the Register shall also be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. (d) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 - 105 - Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (de) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender ~~pro tanto~~to the extent of such assignment. (ef) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower hereunder shall be - 106 - 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, Borrower, the Collections of Borrower or its Subsidiaries, 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. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Obligations (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) 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. Each Participant shall be entitled to the benefits and obligations of Section 16.11 (subject to the requirements and limitations of such section, including the requirements to provide tax documentation (it being understood that the documentation required under Section 16.11 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (a) of this Section 14.1. (fg) 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.7, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses. (gh) 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Freshpet, Inc.)

Assignments and Participations. (a) Any ~~Lender may,~~ Bank may at any time (with the ~~prior written~~ consent of the Agent, ~~which~~ such consent not to be unreasonably withheld or delayed, and the consent of ~~Agent shall~~ the Issuing Bank, such consent not to be unreasonably ~~withheld,~~ withheld or delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) ~~of a Lender, any Lender may assign and delegate~~ sell to one or more ~~assignees so long as such prospective assignee is an Eligible Transferee~~ banks or other entities (~~each, an “Assignee”; provided, however, that no Loan Party or Affiliate of~~ a ~~Loan Party shall be permitted to become an Assignee~~"Purchasing Bank") all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender part of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the ~~other Loan Documents~~DSR Notes (which, except in the case of an assignment to a Person that, immediately before such assignment, was a Bank, shall be equal to at least $1,000,000 or, if less, the entire remaining amount of the transferor Bank's rights and obligations hereunder) pursuant to a Commitment Transfer Supplement executed by such Purchasing Bank, such ~~Lender~~ transferor Bank, the Agent and the Issuing Bank. Upon (x) such execution of such Commitment Transfer Supplement, and (y) delivery of a copy thereof to the Borrower and payment of the amount of its participation to the Agent or such transferor Bank, such Purchasing Bank shall ~~cease to~~ for all purposes be a Bank party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 and shall have all the ~~execution, legality, validity, enforceability, genuineness, sufficiency or value~~ rights and obligations of this Agreement or any other 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 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 Bank under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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)~~same extent as if it were an original party hereto with the commitment percentage as set forth in such Commitment Transfer Supplement, ~~this Agreement~~ which shall be deemed to ~~be amended~~ amend this Agreement to the extent, ~~but~~ and only to the extent, necessary to reflect the addition of ~~the Assignee~~ such Purchasing Bank and the resulting adjustment of commitment percentages arising from the ~~Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce~~ purchase by such ~~Commitments~~ Purchasing Bank of all or a portion of the ~~assigning Lender pro tanto~~rights and obligations of such transferor Bank under this Agreement and the DSR Notes. Upon the consummation of any transfer pursuant to this Section 9.9, the transferor Bank, the Agent and the Borrower shall make appropriate arrangements so that, if required, replacement DSR Notes are issued to such transferor Bank and new DSR Notes or, as appropriate, replacement DSR Notes, are issued to such Purchasing Bank, in each case, in principal amounts reflecting their Commitments. (eb) Any ~~Lender may at~~ Bank may, from time to time, sell or offer to sell participating interests in any ~~time sell~~ DSR Loans owing to such Bank, any DSR Notes held by such Bank, any Commitment of such Bank or any other interests and obligations of such Bank hereunder, to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons~~ entities (each, a “"Participant~~”) participating interests in all~~ "), on such terms and conditions as may be determined by the selling Bank, without the consent of or ~~any portion of its Obligations, its Commitment~~notice to the Borrower, and the ~~other~~ grant of such participation shall not relieve any Bank of its obligations, or impair the rights ~~and interests~~ of ~~that Lender (~~any Bank, hereunder. In the ~~“Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain~~ event of any such sale by a ~~“Lender” for all purposes~~ Bank of ~~this Agreement and the other Loan Documents and the Participant receiving the~~ a participating interest ~~in the Obligations~~to a Participant, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender such Bank shall remain solely responsible for the performance of such ~~obligations~~Bank's obligations under this Agreement, ~~(iii)~~ such Bank shall remain the holder of any such DSR Notes for all purposes under this Agreement, the Borrower, ~~Agent,~~ the Agent and the ~~Lenders shall~~ Issuing Bank will continue to deal solely and directly with ~~the Originating Lender~~ such Bank in connection with ~~the Originating Lender’s~~ such Bank's rights and obligations under this Agreement and such Bank shall retain the ~~other Loan Documents~~sole right and responsibility to exercise the rights of such Bank, ~~(iv) no Lender shall transfer or grant any participating interest under which~~ and enforce the ~~Participant has~~ obligations of the Borrower, including, without limitation, the right to approve any ~~amendment to~~amendment, ~~or any consent~~ modification, supplement 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~~ provision of any Letter of Credit Document ~~would (A) extend~~ and the ~~final maturity date of the Obligations hereunder in which~~ right to take action under Article VI hereof, and such Bank shall not grant any such Participant ~~is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which~~ any voting rights or veto power over any 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 action by 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, and (v) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding Bank under this Agreement ~~are due and unpaid~~(provided that such Bank may agree not to consent to any modification, amendment or ~~shall have been declared or shall have become due and payable upon the occurrence~~ waiver 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~~ , without the consent of the Participant, that would alter the principal of or interest on the DSR Loans, postpone the date fixed for any payment of principal of or interest thereon or extend the term of any Commitment; provided further that if any Participant ~~only shall be derivative through~~ refuses to consent to any such modification, amendment or waiver of this Agreement, such Bank may purchase the ~~Originating Lender with whom~~ participating interests from such ~~Participant participates and no~~ non-consenting Participant). No Participant shall have any rights under this Agreement to receive payment of principal of or ~~the other~~ interest on any DSR Loan ~~Documents or any direct rights~~ except through a Bank and as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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 provided 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 Borrower and its Subsidiaries and their respective businesses~~9. (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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Debt Service Reserve Letter of Credit and Reimbursement Agreement (Eme Homer City Generation Lp)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall BN ▇▇▇▇▇▇▇▇▇ not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain BN ▇▇▇▇▇▇▇▇▇ solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~participation, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Teltronics Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”; provided, ~~however~~that none of Borrower, ~~that no Loan Party~~ any Guarantor, or ~~Affiliate~~ any of ~~a Loan Party~~ their respective Affiliates shall be permitted to become an Assignee) ~~all~~ approved by Agent and Borrower ((x) such approvals not to be unreasonably withheld, delayed, or conditioned and not to be required in connection with assignments to other Lenders or their Affiliates, and (y) such approval of Borrower not to be required after the occurrence and during the continuance of an Event of Default) all, or any ~~portion~~ ratable part of all, of the Obligations, the Revolving Credit Facility Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (~~except such minimum~~ or the remaining amount ~~shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ of any ~~Lender or (y) a group of new Lenders~~Lender’s Revolving Credit Facility Commitment, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided~~, however~~, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided~~, however~~, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section 15~~ Article 10 and Section ~~17.9(a)~~11.1 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s 's receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above, 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 Revolving Credit Facility Commitments arising therefrom. The Revolving Credit Facility Commitment allocated to each Assignee shall reduce such Revolving Credit Facility 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”) approved by Borrower (such approval of Borrower (x) not to be unreasonably withheld, delayed, or conditioned and not to be required in connection with participations to another Lender or its Affiliates, and (y) not to be required after the occurrence and during the continuance of an Event of Default) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Revolving Credit Facility Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided~~, however~~, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolving Credit Facility 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) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable~~ premiums, (v) no Lender shall transfer or grant any participating interest to ~~such Participant through such Lender~~a Direct Competitor without the consent of Borrower (which consent of Borrower shall not be required if an Event of Default has occurred and is continuing), and (vvi) 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 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, Borrower, the ~~Collections~~ collections of Borrower or its Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~11.11, disclose all documents and information which it now or hereafter may have relating to Borrower 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 ~~CFR §~~C.F.R. § 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (JMP Group Inc.)

Assignments and Participations. (a) ~~Any~~ With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not 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 ~~may,~~ or an Affiliate (other than individuals) of a Lender and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, ~~delayed,~~ delayed or conditioned, and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower~~ shall not ~~be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall~~ be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (each, an “"Assignee”"; provided, however, that no Loan ~~Party or~~ Party, Affiliate of a Loan ~~Party~~ Party, Equity Sponsor, or Affiliate of Equity Sponsor shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s 's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ any Loan Party or the performance or observance by ~~Borrower~~ any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s '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 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, however, 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such ~~participation~~participation (except where applicable for purposes of Section 16), 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 ~~Borrower~~ Parent 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 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. (h) ~~Agent (~~Each Lender that sells a participation, acting solely for this purpose 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 and address of ~~all participants in the Registered Loans held by it (~~each Participant and the principal ~~amount~~ amounts (and stated ~~interest thereon~~interest) of each participant’s interest in the ~~portion of such Registered~~ Swing Loans ~~that is subject to such participations)~~ or other obligations under this Agreement (the “Participant Register”). ~~A Registered Loan (~~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 ~~Registered Note, if any, evidencing~~ Participant Register as the ~~same) may be participated in whole or in part only by registration~~ owner of such participation on for all purposes of this Agreement notwithstanding any notice to 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 Registercontrary. (ji) ~~Agent~~ The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall ~~make~~ maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the ~~Register (~~recordation of the names and addresses of the Lenders, and the commitment of, and principal amount of the Swing Loans owing to, each Lender ~~shall make a copy of its Participant Register in~~ pursuant to the ~~extent it has one) available for review by Borrower~~ terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower ~~may reasonably request~~and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.

Appears in 1 contract

Sources: Credit Agreement (MDC Partners Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ratable portion of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrowers, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under ~~Section~~ Article 15 and Section ~~17.9(a)~~16.7 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~16.7, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Borrowers and ~~its~~ their 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (155 East Tropicana, LLC)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided, however,~~ ) that ~~no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ are Eligible Transferees all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section ~~13.1(b~~14.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 16 and Section ~~17.9(a)~~17.7(a) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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~~14.1(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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~17.7, disclose all documents and information which it now or hereafter may have relating to Borrower and its ~~Subsidiaries and their respective businesses~~business. (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 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. (h) The Agent ~~(as a non-fiduciary agent on behalf of Borrower) shall maintain~~may, ~~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 one or both of the Term Loans (~~and the ~~principal amount thereof and stated interest thereon) held by such Lender (each~~Borrower hereby expressly authorizes the Agent, ~~a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of each Term Loan~~ to ~~an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and~~ provide 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower Competitor List from time to time ~~as Borrower may reasonably request~~to each Lender requesting the same.

Appears in 1 contract

Sources: Loan and Security Agreement (Hercules Capital, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations ~~of such Lender hereunder and~~ under ~~the other Loan Documents~~this Agreement (including, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenderswithout limitation, ~~each of which is an Affiliate of each other~~ all or a ~~Related Fund~~ portion of ~~such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~its Loans, its Notes, and its Revolving Credit Commitment); provided, however, that (i) each such assignment shall be to an Eligible Assignee; (ii) each such assignment by a Lender shall (A) be of an equal percentage of all of its rights and obligations under both the Revolving Credit Facility and the Five Year Facility, (B) be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement and its Notes, and under the Five Year Facility Credit Agreement and the promissory notes issued thereunder and (C) result in the assigning Lender having an equivalent Applicable Commitment Percentage under both the Revolving Credit Facility and the Five Year Facility and the assignee Lender having an equivalent Applicable Commitment Percentage under both the Revolving Credit Facility and the Five Year Facility; (iii) 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 and under the Five Year Facility Credit Agreement, any partial assignment of a Lender's Revolving Credit Commitment and its Five Year Facility Commitment shall be in an aggregate amount at least equal to $10,000,000 or an integral multiple of $5,000,000 in excess thereof; (iv) except in the case of an assignment of all of a Lender's rights and obligations under this Agreement, no Lender shall make any assignment that would result in the sum of its Revolving Credit Commitment and its Five Year Facility Commitment being less than $15,000,000; (v) in the event a Lender assigns all of its Revolving Credit Commitment, such assignment must include all of its Competitive Bid Loans; and (vi) the parties to such assignment shall execute and deliver to the Agent for its acceptance an Assignment and Acceptance, together with any Note subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement; provided, the assigning Lender shall be entitled to reimbursement from the Borrower with respect to amounts payable pursuant to Sections 4.01, 4.05, 4.06, 11.06 and 11.11 in connection with events prior to such assignment; provided further, to the extent the Borrower makes any such payments to the assigning Lender, the Borrower shall not be required to also pay the assignee such amounts. Upon the consummation of any assignment pursuant to this Section, the assignor, the 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 incorporated under the laws of the United States of America or a state thereof, it shall deliver to the Borrower and the Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.06. (b) The Agent shall maintain at its Principal 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 and the Revolving Credit Commitment of, and principal amount of the 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 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. (c) Upon its receipt of an Assignment and Acceptance executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, 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 parties thereto. (d) Each Lender may sell participations to one or more Persons in a portion of its rights, obligations or rights and obligations under this Agreement (including all or a portion of its Commitment or its Loans); 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 participant shall be entitled to the benefit of the yield protection provisions contained in Article IV and the right of setoff contained in Section 11.04, and (iv) the Borrower shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 any future 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~~ Agreement, and ~~the other Loan Documents,~~ such Lender shall ~~cease~~ retain the sole right to ~~be a party hereto~~ enforce the obligations of the Borrower relating to its Loans and ~~thereto); provided~~its Notes and to approve any amendment, ~~however~~modification, ~~that nothing contained herein shall release~~ or waiver of any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 provision of this Agreement (other than amendments, modifications, or ~~any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to~~ waivers decreasing the ~~financial condition~~ amount of ~~Borrower~~ principal of or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based rate at which interest is payable on such ~~documents and information as it shall deem appropriate at~~ Loans or Notes, extending any scheduled principal payment date or date fixed for the ~~time~~payment of interest on such Loans or Notes, ~~continue to make~~ or extending its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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(bRevolving Credit Commitment), 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) ~~Any~~ Notwithstanding any other provision set forth in this Agreement, any Lender may at any time ~~sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in~~ assign and pledge all or any portion of its ~~Obligations~~Loans and its Note to any 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 assigning Lender from its obligations hereunder. (f) Any Lender may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), ~~its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided~~subject, however, 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 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) Borrower, 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~~provisions of Section 11.03 hereof. (g) The Borrower may not assign any rights, powers, duties 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, and (v) 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 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 obligations under this Agreement or the other Loan Documents ~~or any direct rights as to~~ without the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 prior written consent of all ~~or any portion of its portion of each 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 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), 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 Term Loans 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 RegisterLenders. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Proffitts Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $~~5,000,000~~ 10,000,000, provided that, so long as no Event of Default has occurred and is continuing, any such assignment shall require the consent of Administrative Borrower (~~except such minimum amount~~ which consent shall not ~~apply to (x) an assignment~~ be unreasonably withheld, delayed or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000conditioned); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrowers and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 16 and Section ~~17.9(a)~~18.9 of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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) ~~Borrower~~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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ 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~~ 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, ~~Borrower~~Borrowers, the Collections of ~~Borrower~~ Borrowers or ~~its~~ their Subsidiaries, 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~~participation, a Lender may, subject to ~~the provisions of~~ Section ~~17.9~~18.9, disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~Borrowers or Borrowers’ business. (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 ~~in favor~~ to secure obligations of such Lender, including without limitation (a) any pledge or assignment to secure obligations to any of the twelve Federal Reserve ~~Bank in accordance with Regulation A~~ Banks organized under §4 of the Federal Reserve ~~Bank~~ Act, 12 USC §341 and (b) with respect to any Lender that is a Fund, to any lender or ~~U.S. Treasury Regulation 31 CFR §203.24~~any trustee for, ~~and~~ or any other representative of, holders of obligations owed or securities issued by such ~~Federal Reserve Bank may enforce~~ Fund as security for such ~~pledge~~ obligations or ~~security interest in~~ securities or any ~~manner permitted under applicable law~~institutional custodian for such Fund or for such lender; provided that no such grant shall release such Lender from any of its obligations hereunder, provide any voting rights hereunder to the secured party thereof, substitute any such secured party for such Lender as a party hereto or affect any rights or obligations of Borrowers or Agent hereunder. (h) ~~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~~ If any assignee Lender as the registered owner of one or both of the Term Loans (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 each Term Loan to is an Affiliate of any Borrower, then any such assignee Lender shall have no right to vote as a Lender hereunder or ~~a Related Fund~~ under any of ~~such Lender (i) a Registered~~ the other Loan (Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or other modifications to any of the Loan Documents or for purposes of making requests to Agent pursuant to Section 9, and the ~~registered note, if any, evidencing~~ determination of the ~~same) may be assigned or sold in whole or in part only by registration~~ Required Lenders shall for all purposes 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 (~~this Agreement and the ~~registered note, if any, evidencing the same) may~~ other Loan Documents be ~~effected only by registration of~~ made without regard to such ~~assignment or sale on the Register, together with the surrender~~ assignee Lender’s interest in any of the ~~registered note, if any, evidencing the same duly endorsed by (or accompanied by~~ Obligations. If any Lender sells a ~~written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request~~ participating interest in any of the ~~designated assignee(s)~~ Obligations to a Participant, and such Participant is a Borrower 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), 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 Term Loans to an Affiliate of a Borrower, then such transferor Lender ~~or a Related Fund~~ shall promptly notify Agent of the sale of such ~~Lender~~participation. A transferor Lender shall have no right to vote as a Lender hereunder or under any of the other Loan Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or modifications to any of the Loan Documents or for purposes of making requests to Agent pursuant to Section 10 to the extent that such participation is beneficially owned by a Borrower or any Affiliate of a Borrower, and ~~which assignment is not recorded~~ the determination of the Required Lenders shall for all purposes of this Credit Agreement and the other Loan Documents be made without regard to the interest of such transferor Lender in the ~~Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable~~ Obligations 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 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 extent 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 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 Registerparticipation. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (West Marine Inc)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an "ASSIGNEE") that are Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Transferees all or any ~~portion~~ portion, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of ~~which~~ whom is an Affiliate of each other or a ~~Related Fund~~ fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); ~~provided~~PROVIDED, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with ~~Section 13.1(b~~SECTION 13.1(B), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee 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 the assigning Lender. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~SECTION 10.3 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Parent, Borrowers, the assigning Lender, and the Assignee; ~~provided~~PROVIDED, ~~however~~HOWEVER, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s 's obligations under ~~Section~~ SECTION 15 and ~~Section 17.9(a)~~SECTION 17.9(A) of this Agreement. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 ~~Borrower~~ the Loan Parties or the performance or observance by ~~Borrower~~ Loan Parties of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s 's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to ~~Section 13.1(b~~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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender ~~pro tanto~~PRO TANTO. (e) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Parent, Borrowers, the assigning Lender, and the Assignee; PROVIDED, HOWEVER, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under SECTION 15 and SECTION 17.9(A) of this Agreement. (f) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Loan Parties or the performance or observance by Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement as are delegated to Agent, by the terms hereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (g) 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO. (h) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a ~~“Participant”~~"PARTICIPANT") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the ~~“Originating Lender”~~"ORIGINATING LENDER") hereunder and under the other Loan Documents; ~~provided~~PROVIDED, ~~however~~HOWEVER, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~Parent, Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~the Loan Parties, the Collections of ~~Borrower~~ the Loan Parties or ~~its~~ their Subsidiaries, 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. (fi) 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~~participation, a Lender may, subject to the provisions of ~~Section~~ SECTION 17.9, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ Loan Parties and ~~its~~ their Subsidiaries and their respective businesses. (gj) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §ss. 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (hk) Within five (5) Business Days of receipt of a written request from the Administrative Borrower, Agent ~~(as~~ shall provide Administrative Borrower with 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 one or both listing of the ~~Term Loans (~~Lenders and ~~the principal amount thereof~~ their respective Commitments, based on Agent's current books 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 each 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 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), 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 Term Loans 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 Registerrecords. (i) In the event that a 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (WHX Corp)

Assignments and Participations. ~~(a) Any Lender may, with~~ Neither the Guarantor nor the Borrower may assign its rights or obligations under the Facility without the prior written consent of ~~Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned~~the Lenders. Any Lender may assign, and ~~so long as no Event of Default exists~~may sell participations in, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other its rights and obligations ~~of such Lender hereunder and~~ under the ~~other Loan Documents~~Facility, subject (a) in ~~a minimum amount (unless waived by Agent)~~ the case of ~~$5,000,000 (except such minimum amount shall not apply~~ participations, to ~~(x) an assignment or delegation by any Lender to any other Lender or an Affiliate~~ customary restrictions on the voting rights of ~~any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender~~ the participants and restrictions on participations to the ~~extent that~~ Guarantor, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that~~ Borrower and their respective affiliates and (b) in the case of assignments, to such limitations as may be established by the Administrative Agent ~~may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until~~ (including (i) ~~written notice~~ a minimum assignment amount of US$1,000,000 (or, if less, the entire amount of such ~~assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by~~ assignor’s commitments or outstanding loans at such ~~Lender and the Assignee~~time), (ii) ~~such Lender and its Assignee have delivered to Borrower and Agent~~ an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing assignment fee in the amount of $~~3,500. (b) From and after~~ 3,500 to be paid by the ~~date that Agent notifies~~ respective assignor or assignee to the ~~assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee~~Administrative Agent, (iiii) restrictions on assignments to any entity that is not an Eligible Assignee (to be defined to exclude the ~~Assignee thereunder shall be a party hereto and~~Guarantor, to the ~~extent that rights~~ Borrower 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 under the Loan Documents~~their respective affiliates), and (iiiv) the assigning Lender 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 any future obligations under this Agreement (and~~ in the case of an ~~Assignment and Acceptance covering all~~ assignment to any Lender (or any Permitted Assignee) or an affiliate or an “approved fund” of a Lender, the ~~remaining portion~~ receipt of ~~an assigning Lender’s rights and obligations~~ the consent of the Administrative Agent and, so long as no event of default exists under ~~this Agreement and~~ the ~~other Loan Documents~~Facility, the Borrower (such ~~Lender shall cease~~ consent, in any such case, not to be unreasonably withheld, delayed or conditioned and with the consent of the Borrower to have been deemed granted if it has not objected to a ~~party hereto~~ proposed assignment within 5 business days’ notice thereof)). The Facility shall provide for a mechanism which will allow for each assignee to become a direct signatory to the Facility and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, will relieve the assigning Lender 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 Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility~~ its obligations with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any assigned portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 Lender sells participations in the Registered Loan, such Lendercommitment and/or loans, as ~~a non-fiduciary agent on behalf of Borrower, shall maintain (or cause~~ applicable. Participations will have customary benefits with regard to ~~be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (~~yield protection 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 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 Registerincreased costs. (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Commitment Letter (TE Connectivity Ltd.)

Assignments and Participations. (a) ~~Any Lender may~~None of Guarantor, ~~with~~ Pledgor or Seller shall sell, assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties under this Agreement or any other Repurchase Document without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent shall not be unreasonably withheld~~Seller, ~~delayed~~Pledgor, Sponsor or ~~conditioned~~Guarantor, and at Buyer’s sole cost and expense, sell participations to any Eligible Assignee (other than a natural person or Seller, Sponsor, Pledgor, any Intermediate Entity, Guarantor or any of their respective Affiliates) (a “Participant”) in all or any portion of Buyer’s rights and/or obligations under the Repurchase Documents; provided that (x) if a monetary or material non-monetary Default or any an Event of Default has occurred and is continuing, Buyer may sell participations to any Person at any time without consent, notice or restriction of any kind, other than the requirements set forth in clause (iv) below, and (y) so long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing: (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (ii) Buyer shall remain solely responsible to Seller for the performance of such obligations, (iii) Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents, (iv) each Participant agrees to be bound by the confidentiality provisions set forth in Section 18.09, and (v) provided that, so long as no Event of Default exists, Buyer shall retain ultimate decision-making authority under the Repurchase Documents. So long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing, no Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the ~~prior written consent~~ extent that the Repurchase Price or Price Differential of ~~Borrower~~any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, ~~which consent of Borrower~~ including the requirements under -106- Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.07(c), provided that such Participant shall not be ~~unreasonably withheld~~entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been entitled to receive, ~~delayed~~except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by a Governmental Authority or compliance by Buyer or such Participant with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over Buyer or such Participant, in each case made or ~~conditioned~~ issued after the Participant acquired the applicable participation. To the extent permitted by Requirements of Law, each Participant shall also be entitled to the benefits of Sections 10.02(i) and 18.16 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.07(c). (~~provided that no written~~ c) Buyer may at any time, without the consent of ~~Agent~~ Seller, Pledgor, Sponsor or ~~Borrower shall be required in connection with an assignment~~ Guarantor but upon notice to ~~a Person that is a Lender or an Affiliate (other than individuals) of a Lender~~Seller, ~~any Lender may~~ and at Buyer’s sole cost and expense, sell and assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of all of the ~~Obligations, the Commitments and the other~~ rights and obligations of ~~such Lender hereunder and~~ Buyer under the ~~other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender~~ Repurchase Documents to any ~~other Lender~~ Eligible Assignee proposed by Buyer; provided that if a monetary or ~~an Affiliate~~ material non-monetary Default or any Event of Default has occurred and is continuing, Buyer may enter into any such sale and assignments with any Person at any time without consent, notice or restriction of any ~~Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of~~ kind. Each such ~~new Lender~~ assignment shall be made pursuant to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit F (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the Assignee thereunder~~ each such assignee shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the related assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.07(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.07(b). (d) Seller shall cooperate with Buyer in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller and shall be at no cost to Seller. (e) Buyer, at Buyer’s sole cost and expense, shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents to any ~~statements~~Eligible Assignee so long as, ~~warranties~~ prior to the occurrence and during the continuance of a monetary or ~~representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement~~ material non-monetary Default or any ~~other Loan Document furnished pursuant hereto~~Event of Default, ~~(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect~~ Buyer -107- shall remain solely responsible to ~~the financial condition of Borrower or~~ Seller for the performance ~~or observance~~ by ~~Borrower of any~~ Buyer of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Repurchase Documents; provided, however, 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 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) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the assignees that become Parties hereto and, with respect to each such assignees, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The Register shall be available for inspection by the Parties at any reasonable time and from time to time upon reasonable prior notice. (g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register. (j) Agent shall make a copy~~ Register as the owner of the ~~Register (and each Lender shall make a copy~~ applicable participation for all purposes of ~~its Participant Register in~~ this Agreement notwithstanding any notice to the ~~extent it has one) available for review by Borrower from time to time as Borrower may reasonably request~~contrary.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (BrightSpire Capital, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent ~~shall not be unreasonably withheld, delayed, or conditioned,~~ and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of~~ Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that no written consent of Agent or Borrower shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender to an Eligible Transferee and no consent of the Borrower shall be required if a Default or ~~an Affiliate (other than individuals)~~ Event of ~~a Lender~~Default shall have occurred and be continuing), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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 (i) Borrower's consent shall not be required for any assignment by a Lender to any Lender's Affiliate and (ii) in any case, Borrower's consent to any such assignment shall not be unreasonably conditioned, delayed or withheld. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of the required~~ each Assignee's making its processing ~~fee~~fee payment, if applicable, under the Assignment and ~~delivery~~ Acceptance and receipt and acknowledgment by Agent of ~~notice to the assigning Lender pursuant to Section 13.1(b)~~such fully executed Assignment and Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, ; (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, ; (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~Section203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Party City Corp)

Assignments and Participations. (a) ~~Any Lender may~~None of Guarantor, ~~with~~ Seller or any of their respective Affiliates shall sell, assign or transfer any of their respective rights or the Repurchase Obligations or delegate any of their respective duties under this Agreement or any other Repurchase Document without the prior written consent of ~~Agent~~Buyer, ~~which~~ and any attempt to do so without such consent shall be null and void. (b) Buyer may at any time, without the consent of ~~Agent~~ Seller, Guarantor or any of their respective Affiliates, sell participations to any Person other than a natural person, Seller, Guarantor or any of their respective Affiliates or, at all times prior to the occurrence and during the continuance of a Default or an Event of Default, a Prohibited Transferee (a “Participant”), in all or any portion of Buyer’s rights and/or obligations under the Repurchase Documents; provided that, at all times prior to the occurrence and continuance of a Default or an Event of Default (i) W▇▇▇▇ Fargo Bank, National Association will remain the sole agent under this Agreement and will retain administrative responsibility and continue to control all Buyer decisions under the Agreement, (ii) Buyer’s obligations under the Repurchase Documents shall ~~not be unreasonably withheld~~remain unchanged, ~~delayed~~(iii) W▇▇▇▇ Fargo Bank, ~~or conditioned~~National Association shall remain solely responsible to Seller for the performance of such obligations, (iv) Seller shall continue to deal solely and directly with W▇▇▇▇ Fargo Bank, National Association in connection with Buyer’s rights and obligations under the Repurchase Documents, and (v) each Participant agrees to be bound by the confidentiality provisions set forth in Section 18.10; provided, that, so long as no Event of Default ~~exists~~has occurred and is continuing, Buyer shall retain full decision-making authority under the Repurchase Documents. No Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the ~~prior written consent~~ extent that the Repurchase Price or Price Differential of ~~Borrower~~any Purchased Asset would be reduced or the Repurchase Date of any Purchased Asset would be postponed. Each Participant shall be entitled to the benefits of Article 12 (subject to the requirements and limitations therein, ~~which consent of Borrower~~ including the requirements under Section 12.06(e) (it being understood that the documentation required under Section 12.06(e) shall be delivered to the participating Buyer)) and Article 13 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.08(c), provided that such Participant shall not be ~~unreasonably withheld~~entitled to receive any greater payment under Section 12.04 or Section 12.06 than its participating Buyer would have been entitled to receive, ~~delayed~~except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirements of Law or in the interpretation or application thereof by a Governmental Authority or compliance by Buyer or such Participant with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over Buyer or such Participant, in each case made or ~~conditioned~~ issued after the Participant acquired the applicable participation. To the extent permitted by Requirements of Law, each Participant shall also be entitled to the benefits of Sections 10.02(i) and 18.17 to the same extent as if it had acquired its interest by assignment pursuant to Section 18.08(c). (~~provided that no written~~ c) Buyer may at any time, without the consent of ~~Agent~~ Seller, Pledgor or ~~Borrower shall be required~~ Guarantor, but upon notice to Seller, sell and assign to any Eligible Assignee (or, notwithstanding any other provision herein or in ~~connection with~~ any other Repurchase Document, if an ~~assignment~~ Event of Default has occurred and is continuing, to ~~a Person that is a Lender or an Affiliate (~~any Person, without any other ~~than individuals) of a Lender~~restriction), any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of all of the ~~Obligations, the Commitments and the other~~ rights and obligations of ~~such Lender hereunder and~~ Buyer under the ~~other Loan~~ Repurchase Documents; provided that, in at all times prior to the occurrence and continuance of a ~~minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender~~ Default or an ~~Affiliate~~ Event of ~~any Lender or~~ Default (yi) ~~a group of new Lenders~~W▇▇▇▇ Fargo Bank, ~~each of which is an Affiliate of each other or a Related Fund~~ National Association will remain the sole agent under this Agreement and will retain administrative responsibility and continue to control all Buyer decisions under the Agreement, (ii) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (iii) W▇▇▇▇ Fargo Bank, National Association shall remain solely responsible to Seller for the performance of such ~~new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided~~obligations, ~~however, that Borrower~~ and ~~Agent may~~ (iv) Seller shall continue to deal solely and directly with ~~such Lender~~ W▇▇▇▇ Fargo Bank, National Association in connection with Buyer’s rights and obligations under the ~~interest so assigned~~ Repurchase Documents. Each such assignment shall be made pursuant to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee substantially in the ~~amount~~ form of ~~$3,500.~~ Exhibit F (b) an “Assignment and Acceptance”). From and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ of such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) ~~the~~ such Eligible Assignee ~~thereunder~~ shall be a ~~party hereto~~ Party and, to the extent ~~that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance~~provided therein, ~~shall be a “Lender” and shall~~ have the rights and obligations of ~~a Lender~~ Buyer under the ~~Loan Documents~~Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, ~~and~~ (ii) ~~the assigning Lender~~ Buyer 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~~provided therein, ~~relinquish its rights (except with respect to Section 10.3) and~~ be released from ~~any future~~ such obligations ~~under this Agreement~~ (~~and~~ and, in the case of an Assignment and Acceptance covering all or the remaining portion of ~~an assigning Lender~~Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the Eligible Assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section 18.08(c) shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 18.08(b). (d) Seller shall cooperate with Buyer, at Buyer’s sole cost and expense, in connection with any such sale and assignment of participations, syndications or assignments and shall enter into such restatements of, and amendments, supplements and other modifications to, the Repurchase Documents to give effect to any such sale or assignment; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller. (e) Subject to the assignment restrictions set forth in this Section 18.08, Buyer shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 Repurchase Documents 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 themselvesEligible Assignee. (f) ~~In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in~~Buyer, ~~or pledge of, its rights under and interest in~~ acting solely for 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 Borrower 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 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. (h) Agent (purpose as a non-fiduciary agent ~~on behalf~~ of ~~Borrower)~~ Seller, shall ~~maintain, or cause to be maintained,~~ maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the Eligible Assignees that become Parties hereto and, with respect to each such Eligible Assignee, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The Register shall be available for inspection by the Parties at any reasonable time and from time to time upon reasonable prior notice. (g) If Buyer sells a participation of its rights hereunder, it shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each ~~Lender as~~ Participant and, with respect to each such Participant, the ~~registered owner of one or both of the Term Loans (~~aggregate participated Purchase Price 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 each 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 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), 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 Term Loans to an Affiliate of such Lender or a Related Fund of such Lenderapplicable Price Differential, and ~~which assignment is not recorded~~ any other interest in any obligations under the Register, the assigning Lender, on behalf of Borrower, 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 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) Repurchase Documents (the “Participant Register”)~~. A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole~~ ; provided that no Party shall have any obligation to disclose all or ~~in part only by registration~~ any portion of ~~such participation on~~ the Participant Register (~~and each~~ including the identity of any Participant or any information relating to a Participant’s interest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered ~~note~~ form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall ~~expressly so provide). Any participation of such Registered Loan (~~be conclusive absent manifest error, and the ~~registered note, if any, evidencing the same) may be effected only by the registration of such participation on~~ participating Party shall treat each Person whose name is recorded in the Participant ~~Register~~Register as the owner of the applicable participation for all purposes of this Agreement notwithstanding any notice to the contrary. (jh) ~~Agent~~ Buyer shall ~~make a copy of the Register (and each Lender shall make a copy of~~ not assign its ~~Participant Register~~ rights or create participations or similar ownership interests in the ~~extent it has one) available~~ Repurchase Documents in a manner that would cause Seller or any portion of Seller to be a “taxable mortgage pool” for ~~review by Borrower from time to time as Borrower may reasonably request~~U.S. federal income tax purposes.

Appears in 1 contract

Sources: Master Repurchase and Securities Contract (FS Credit Real Estate Income Trust, Inc.)

Assignments and Participations. (a) Any Lender may, with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may sell, transfer, negotiate or assign ~~and delegate~~ to one or more ~~assignees so long as such prospective assignee is an~~ Eligible ~~Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee)~~ Assignees all or ~~any~~ a portion of ~~the Obligations, the Commitments and the other~~ its rights and obligations hereunder (including all of ~~such Lender hereunder~~ its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the ~~extent that~~ Term Loans, the ~~aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~Revolving Loans, the Swing Loans and the Letters of Credit); provided, however, ~~that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until~~ that: (i) ~~written notice~~ (A) if any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and related Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and related Revolving Credit Commitment, and (B) if any such assignment shall be of the assigning Lender’s Tranche B Loans or Delayed Draw Term Loans, and related Commitments, such assignment shall cover the same percentage of such Lender’s Tranche B Loans or Delayed Draw Term Loans respectively, and related Commitment, (ii) the Dollar Equivalent of the 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 Assignor’s entire interest) be less than $1,000,000 for Term Loans and $5,000,000 for Revolving Loans or an integral multiple of $1,000,000 in excess thereof (other than with respect of any assignment of which the Arranger is the assignee or the assignor), except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment is being made to a Lender or an Affiliate of such Lender or Approved Fund of any Lender, (iii) if such Eligible Assignee is not, prior to the date of such assignment, ~~together with payment instructions~~a Lender or an Affiliate or Approved Fund of a Lender, ~~addresses, and related information with respect~~ such assignment shall be subject to the ~~Assignee, have been given to Borrower and~~ prior consent of the Administrative Agent ~~by such Lender~~ and the ~~Assignee~~Borrower (which consent shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing, (iiiv) any such ~~Lender~~ assignment need not be ratable as among any of the Facilities. (b) The parties to each assignment shall execute and deliver to the Administrative Agent for its ~~Assignee have delivered to Borrower~~ acceptance and ~~Agent~~ recording, an Assignment and ~~Acceptance and Agent has notified~~ Acceptance, together with any Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. In addition, any Lender ~~of its receipt thereof~~ or Eligible Assignee assuming a Revolving Credit Commitment in connection with a Facility Increase shall execute an assumption agreement in accordance with Section ~~13.1(b~~2.18 (Facility Increase). Upon such execution, delivery, acceptance and ~~(iii) unless waived~~ recording and the receipt by ~~Agent,~~ the ~~assigning Lender or Assignee has paid to~~ Administrative Agent ~~for Agent’s separate account a processing~~ from the assignee of an assignment fee in the amount of $~~3,500.~~ 3,500 (~~b) From~~ other than with respect of any assignment of which the Arranger is the assignee or the assignor, it being understood that only one such fee shall be payable in connection with concurrent assignments to or by two or more Approved Funds), from and after the effective date ~~that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed~~ specified in such Assignment and ~~Acceptance and, if applicable, payment of the required processing fee~~Acceptance, (i) the ~~Assignee~~ 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, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender, and if such Lender ~~under the Loan Documents~~were an Issuer, of such Issuer hereunder and thereunder, and (ii) the ~~assigning Lender~~ assignor thereunder shall, to the extent that rights and obligations ~~hereunder and~~ under ~~the other Loan Documents~~ this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except ~~with respect to Section 10.3~~for those surviving the payment in full of the Obligations) and be released from ~~any future~~ its obligations under ~~this Agreement~~ the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (~~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 Agreement and~~ the ~~other~~ Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(ahereto). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) Agent (as a non-fiduciary agent acting 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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~~ at its address referred 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.Section 11.8

Appears in 1 contract

Sources: Credit Agreement (Johnsondiversey Holdings Inc)

Assignments and Participations. (a) ~~Any Lender may, with~~ With the ~~prior written~~ consent of the Agent, each Issuing Lender and the Borrower (which ~~consent of Agent~~ consent, in each case, shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (~~provided that no written consent of Agent or Borrower shall be~~ x) required ~~in connection with~~ (A) for an assignment to a ~~Person that is~~ Lender, an Affiliate of a Lender or any Approved Fund, (B) solely in the case of the consent of the Borrower, if an ~~Affiliate~~ Event of Default under Sections 7.1(a), 7.1(d) or 7.1(e) has occurred and is continuing or (~~other than individuals~~C) solely in the case of a the consent of any Issuing Lender, for an assignment of Term Loans or Term Loan Commitments or (y) unreasonably withheld, conditioned or delayed), any Lender may assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (each, an “Assignee”~~; provided~~) that are Eligible Transferees all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the ~~Commitments~~ Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply~~ of, with respect to (x) ~~an assignment~~ the Revolving Commitments or ~~delegation by any Lender to any other Lender~~ Revolving Loans, $5,000,000 (or ~~an Affiliate~~ the remaining amount of any ~~Lender~~ Lender’s Commitment or amount of Loans, if less) or (y) ~~a group~~ the Term Loans or Term Loan Commitments, $1,000,000 (or the remaining amount of ~~new Lenders~~any Lender’s Commitment or amount of Loans, ~~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 assigned to all such new Lenders is at least $5,000,000~~if less); provided, however, that the Borrower and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information including any documentation required pursuant to Sections 2.23(e), (f) and (g) with respect to the Assignee, have been given to the Borrower and the Agent by such ~~Lender~~ L▇▇▇▇▇ and the Assignee, (ii) such Lender and its Assignee have delivered to the Borrower and the Agent an Assignment and ~~Acceptance~~ Acceptance, fully executed and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~delivered by each party thereto, and (iii) ~~unless waived by Agent,~~ the assigning Lender or Assignee has paid to the Agent for the Agent’s separate account a processing fee in the amount of $3,500; provided, further, that the Borrower shall be deemed to have consented to any such assignment if the Borrower does not respond within ten Business Days of a written request for its consent with respect to such assignment. Any attempted or purported sale, transfer, assignment or delegation in 111 contravention of the consent rights noted in the immediately preceding sentence shall be prohibited and for all purposes be treated as a sale of a participation by the Lender to such Assignee. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the Assignee need not be an Eligible Transferee and the consent of the Borrower shall not be required 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 the assigning Lender. The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain a copy at its office in the United States of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. 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. (b) From and after the date that the Agent notifies the assigning Lender (with a copy to the Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ satisfying clause (a) above and payment of the ~~required~~ above-referenced processing ~~fee~~fee and recordation in the Register, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and~~ shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender 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~~8.2 hereof) and be released from any future 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between the Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section ~~15 and Section 17.9(a)~~8.2(b) of this Agreement relating to any period prior to the effectiveness of such assignment. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender 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 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 Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon the Agent’s receipt of the required processing ~~fee, if applicable,~~ fee payment and ~~delivery of notice to~~ the ~~assigning Lender pursuant to Section 13.1(b)~~fully executed Assignment and Acceptance satisfying clause (a) above and recordation in the Register, 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 Revolving Commitments or the Loans arising therefrom. The ~~Commitment~~ Commitments and the Loans allocated to each Assignee shall reduce such Commitments or Loans of the assigning Lender pro tanto. (ed) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who are not natural persons or the Parent or any of 112 its Subsidiaries or affiliates (a “Participant”) participating interests in ~~all or any portion of~~ its Obligations, its ~~Commitment~~Loans, its Commitments, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Loans, the Revolving 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) the Borrower, the 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 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 (other than a waiver of default interest)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~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 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, the Agent, ~~Borrower~~the Parent, ~~the Collections of Borrower or~~ its Subsidiaries~~, 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. Notwithstanding the foregoing, each Participant shall be entitled to the benefits of Sections 2.13 and 2.23 (subject to the requirements and limitations therein, including the requirements under Section 2.23(e) and (f) (it being understood that the documentation required under Section 2.23(e) and (f) shall be delivered solely to the Originating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment; provided that such Participant (A) shall be subject to the provisions of Section 2.24 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.13 or 2.23, with respect to any participation, than the Originating Lender would have been entitled to receive, except to the extent such 113 entitlement to receive a greater payment results from a change in applicable law that occurs after the Participant acquired the applicable participation. 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 related interest amounts) of each Participant’s interest in the Revolving Commitments or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Originating Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as administrative agent) shall have no responsibility for maintaining a Participant Register. (fe) 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~~participation, a Lender may, subject to the provisions of Section ~~17.9~~11.11, disclose all documents and information which it now or hereafter may have relating to ~~Borrower~~ the Parent and its Subsidiaries and their respective businesses. (gf) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or ~~pledge~~pledge or assign, all or any portion of its rights under and interest in this Agreement ~~in favor~~ to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §~~203.24~~203.24 or any other central bank having jurisdiction over such Lender, and such Federal Reserve Bank or other central bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (P10, Inc.)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent~~Agent and, ~~which consent of Agent shall not be unreasonably withheld, delayed, or conditioned, and~~ so long as no Event of Default ~~exists~~has occurred and is continuing, upon 5 Business Days' notice to and with the ~~prior~~ written consent of ~~Borrower, which consent of~~ Administrative Borrower ~~shall~~ (not to be unreasonably withheld~~, delayed, or conditioned~~ ) (provided that no written consent of Agent or ~~Borrower~~ Borrowers shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ~~Borrower~~ Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000 and (iv) such Assignee has delivered any applicable documentation relating to exemption from withholding taxes provided for in Section 16.11. Anything contained herein to the contrary notwithstanding, the consent of Agent or Borrowers shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrowers and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~Borrower~~ Borrowers or the performance or observance by ~~Borrower~~ Borrowers of any of ~~its~~ their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s~~ each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “"Originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, 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 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 's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower~~Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s '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~~ a material portion 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)~~Lender, or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) all amounts payable by ~~Borrower~~ 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, ~~Borrower~~Borrowers, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and no Borrower shall have any rights as third party of any such provisions. (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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to ~~Borrower and its Subsidiaries and their respective businesses~~Borrowers or Borrowers' business. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)

Assignments and Participations. (a) ~~Any~~ At any time after the Effective Date, each Lender ~~may~~may assign to one or more banks or financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and Revolving Credit Exposure) in conformity with the ~~prior written~~ following provisions: (i) each such assignment shall be of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement and the assignment shall transfer the same percentage of such Lender's Commitment, Revolving Credit Exposure and other interests hereunder; (ii) unless the Agent and the Borrower otherwise consent, the amount of the 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 $5,000,000 or, if less, the entire amount of such assigning Lender's Commitment, Revolving Credit Exposure and other interests hereunder (provided that assignments between Lenders shall have no minimum amount and assignments after the occurrence and during the continuance of an Event of Default shall not require Borrower's consent regardless of the size of such assignment); (iii) the Agent shall have consented (which consent shall not unreasonably be withheld) to each such assignment and the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided that such consent of ~~Agent, which consent of~~ the Agent shall not be ~~unreasonably withheld, delayed, or conditioned, and so long as~~ required for any assignment made by a Lender to an Affiliate of such Lender; and (iv) With respect to any assignment made at a time when no Event of Default exists, ~~with~~ the ~~prior written consent of Borrower~~Borrower shall have consented to such assignment, which consent shall not unreasonably be withheld; provided that such consent of the Borrower shall not be ~~unreasonably withheld~~required for any assignment made by a Lender to an Affiliate of such Lender. Upon such execution, ~~delayed~~delivery, ~~or conditioned (provided that no written consent of Agent or Borrower~~ approval, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be ~~required in connection with an assignment to a Person that is a Lender or an Affiliate~~ at least five (~~other than individuals~~5) ~~of a Lender~~Business Days after the execution date thereof, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned or negotiated to it pursuant to such Assignment and Acceptance, ~~shall be a “Lender” and shall~~ have the rights and obligations of a Lender ~~under~~ hereunder (including, in respect of the ~~Loan Documents~~Collateral, all the rights and obligations of a Holder of Secured Obligations, as fully as if such assignee had been named as a Lender in accordance with the terms of this Agreement) and (iiy) the ~~assigning~~ Lender assignor thereunder shall, to the extent that rights and obligations hereunder ~~and under the other Loan Documents~~ have been assigned or negotiated by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(except with respect to Section 10.3)~~ and be released from ~~any future~~ its 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 ~~Agreement and the other Loan Documents~~Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.09, 2.10, 2.11, 11.03 and ~~thereto); provided~~11.04, ~~however, that nothing contained herein shall release~~ as well as to any ~~assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15~~ fees accrued for its account hereunder and ~~Section 17.9(a)~~not yet paid. (cb) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the ~~Assignee~~ assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) the assignment made under such Assignment and Acceptance is made 84 91 without recourse and, other than as provided in such Assignment or 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 other Loan Document or any other document, instrument or agreement executed or delivered in connection herewith or therewith or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other ~~Loan~~ Transaction Document 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 Borrower or any of its Subsidiaries or the performance or observance by Borrower or any of its Subsidiaries of any of its obligations under ~~this Agreement~~ any Transaction Document or any other ~~Loan Document~~ instrument or 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 most recently delivered pursuant to Article V 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 Acceptance, ; (iv) such ~~Assignee~~ assignee will, independently and without reliance upon the Agent, such assigning Lender or any other ~~Lender,~~ Lender or the Issuing 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~~ assignee appoints and authorizes the Agent to take such ~~actions~~ action as an Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~Agent,~~ the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, ; and (vi) 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. (c) The Agent shall maintain at its address referred to on Schedule A, a copy of each Assignment and Acceptance delivered to and accepted by it and shall record in the Agent's Loan Account the names and addresses of each Lender and the Commitment of, and principal amount of the Loans owing to, such Lender from time to time. Borrower, the Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in the Loan Account as a Lender, and all of such Persons as the only Lenders, hereunder for all purposes of this Agreement. (d) ~~Immediately upon Agent’s~~ Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the ~~required processing fee~~assignee, the Agent shall, if ~~applicable~~such Assignment and Acceptance has been properly completed and is in substantially the form of Exhibit 1 and if the conditions for the assignment referred to in the Assignment and Acceptance and set forth in Section 11.02(a) have been met, (i) accept such Assignment and ~~delivery of~~ Acceptance, (ii) record the information contained therein in the Agent's Loan Account and (iii) give prompt notice thereof 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoBorrower. (e) ~~Any~~ Each Lender may ~~at any time~~ sell participations to one or more ~~commercial banks, financial institutions,~~ banks or other ~~Persons (a “Participant”) participating interests in~~ entities as to all or ~~any~~ a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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~~(including, (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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 pledgewithout limitation, all or ~~any~~ a portion of its ~~rights under~~ Commitment and interest in this Agreement 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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.Revolving Credit Exposure; provided that (i) In notice thereof is given to the ~~event that a Lender sells participations in~~ Borrower and the ~~Registered Loan~~Agent, (ii) such Lender's obligations under this Agreement (including, ~~as a non-fiduciary agent on behalf of Borrower~~without limitation, its Commitment to Borrower hereunder) shall ~~maintain~~ remain unchanged, (~~or cause to be maintained~~iii) ~~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 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 copy of the Register (and each Lender shall ~~make a copy~~ remain solely responsible to the other parties hereto for the performance of ~~its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.~~such

Appears in 1 contract

Sources: Credit Agreement (American Classic Voyages Co)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written notice to Agent and, so long as no Default or Event of Default has occurred and is continuing, with the written consent of ~~Agent,~~ Borrower (which consent ~~of Agent shall~~ will not be unreasonably withheld), delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent or Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more ~~assignees so long as such prospective assignee is~~ Eligible Transferees (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part, of the Obligations, the ~~Commitments~~ Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Borrower and Agent an a fully executed Assignment and Acceptance ("Assignment and ~~Agent has notified~~ Acceptance") in the ~~assigning Lender~~ form of ~~its receipt thereof in accordance with Section 13.1(b),~~ Exhibit A-1; and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~5,000; provided further, however, that no consent of Borrower shall be required in connection with an assignment by a Lender of all or substantially all of its portfolio of loans. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an a fully executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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 ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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~~ warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, ~~sufficiency~~ sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any guarantor or the performance or observance by Borrower or any guarantor of any of its obligations under this 92 Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon Agent, any Co-Agent, such assigning ~~Lender~~ 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, ; (v5) such Assignee appoints and authorizes Agent and the Co-Agents to take such ~~actions~~ action as agents on behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to ~~Agent,~~ Agent and the Co-Agents by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Thomaston Mills Inc)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent ~~shall not be unreasonably withheld, delayed, or conditioned,~~ and ~~so long as no Event of Default exists, with the prior written consent of Borrower, which consent of~~ Borrower ~~shall not be unreasonably withheld, delayed, or conditioned~~ (provided that (i) no written consent of Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee, (ii) no written consent of Borrower shall be required in connection with any assignment or delegation if an Event of Default shall have occurred and be continuing, and (iii) no assignment and delegation shall be made, without the prior written consent of Borrower, to a any Person that is ~~a Lender~~ organized in or ~~an Affiliate (~~under the laws of any jurisdiction other than ~~individuals~~the United States or any state or other political subdivision thereof or is otherwise not a United States person as defined in the IRC (a “Foreign Person”) ~~of a Lender~~if payments to such Person would require Borrower to pay any Taxes or any additional amounts pursuant to Section 16.11(e)), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is an Eligible Transferee~~ (~~each,~~ each an “Assignee”~~; provided~~) all, ~~however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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 that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and ~~Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~substance satisfactory to Agent, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent~~each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of ~~the required processing fee, if applicable,~~ such fully executed Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “Participant”) participating or other beneficial interests (“Participating Interests”) in ~~all or any portion of~~ its Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such Participating Interests by a Lender to an Eligible Transferee); provided, however, 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~~ Participating Interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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~~ 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~~ a material portion 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~~has a Participating Interest, (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)~~Lender, or (E) ~~decreases~~ reduce the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender~~premiums, and (v) all amounts payable by Borrower ~~hereunder~~ under any of the Loan Documents (including, without limitation, under Section 16.11) 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~~ set-off in respect of its ~~participating interest~~ Participating Interest in amounts owing under this Agreement to the same extent as if the amount of its ~~participating interest~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~ Participating Interest or proposed assignment or ~~participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement~~Participating Interest, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower’s business, so long as such Lender has first secured a customary confidentiality agreement from such proposed assignee or Participant. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Acme Communications Inc)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of ~~Agent, which consent of~~ Agent shall not be unreasonably withheld, delayed, or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender or to an ~~Affiliate (other than individuals) of a Lender~~Eligible Transferee), ~~any Lender may~~ assign and delegate to one or more assignees ~~so long as such prospective assignee is~~ (each an ~~Eligible Transferee (each~~"Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except such minimum amount shall not apply to ~~(x) an assignment or delegation by~~ any ~~Lender to any other~~ Affiliate of a Lender or ~~an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or~~ to a Related Fund ~~of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~or account managed by a Lender); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) 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, (ii) such Lender and its Assignee have delivered to Borrower and Agent an a fully executed Assignment and ~~Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b)~~Acceptance, and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if (x) 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 or (y) the assignee is an Affiliate of a Lender or a Related Fund. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender (with a copy to Borrower) that it has received an a fully executed Assignment and Acceptance ~~and,~~ and payment (if applicable~~, payment~~ ) of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ affect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, (ii2) such assigning Lender makes no representation or warranty 106 and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, (iv4) such Assignee will, independently and without reliance upon 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, (v5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to Agent, by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, and (vi6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) 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 Commitments arising therefrom. The 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 all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, 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, and (v) 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 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, Borrower, the Collections of Borrower or its Subsidiaries, 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 Borrower 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 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. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Abraxas Petroleum Corp)

Assignments and Participations. (a) Any Lender may, with the ~~prior~~ written consent of Agent, ~~which consent of Agent shall not be unreasonably withheld, delayed,~~ assign and delegate to one or ~~conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed, or conditioned~~ more assignees (provided that no written consent of Agent ~~or Borrower~~ shall be required in connection with an any assignment ~~to a Person that is~~ and delegation by a Lender ~~or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate~~ to ~~one or more assignees so long as such prospective assignee is~~ an Eligible ~~Transferee~~ Transferee) (~~each~~each an "Assignee") all, ~~an “Assignee”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all~~ or any ~~portion~~ ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount ~~(unless waived by Agent)~~ of $5,000,000 (except that such minimum amount shall not apply to in connection with any assignment and delegation by a Lender (x) ~~an assignment or delegation by any Lender~~ to any Affiliate (other than individuals) of, or any fund, money market account, investment account or other account managed by, a pre-existing Lender ~~or an Affiliate of any Lender~~ under this Agreement or (y) ~~a group~~ of ~~new Lenders~~the entire Obligations, ~~each of which is an Affiliate of each~~ Commitments and other ~~or a Related Fund~~ rights and obligations of such ~~new~~ Lender to hereunder and under the ~~extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000~~other Loan Documents); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, ~~addresses,~~ addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee, ; (ii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and ~~Agent has notified the assigning Lender of its receipt thereof~~ Acceptance") in ~~accordance with Section 13.1(b),~~ form and substance satisfactory to Agent; and (iii) ~~unless waived by Agent,~~ the ~~assigning~~ assignor Lender or Assignee has paid to Agent for Agent’s 's sole and separate account a processing fee in the amount of $~~3,500~~5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) 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. (b) From and after the date that Agent notifies the ~~assigning~~ assignor Lender ~~(with a copy to Borrower)~~ that it has received an executed Assignment and Acceptance ~~and, if applicable,~~ and payment of the ~~required~~ above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall ~~be a “Lender” and shall~~ have the rights and obligations of a Lender under the Loan Documents, and (ii) the ~~assigning~~ assignor Lender 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~~11.3 hereof) and be released from ~~any future~~ 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 and the other Loan Documents, such Lender shall cease to be a party hereto and thereto)~~; provided~~, ~~however, that nothing contained herein~~ and such assignment shall ~~release any assigning Lender from obligations that survive~~ effect a novation between Borrower and the ~~termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a)~~Assignee. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) 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 Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (~~iii~~3) such Assignee confirms that it has received a copy of this Agreement, together with 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, ; (iv4) such Assignee will, independently and without reliance upon 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, ; (v5) such Assignee appoints and authorizes Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to ~~Agent,~~ Agent by the terms ~~hereof and thereof~~hereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon ~~Agent’s receipt of~~ each Assignee's making its processing fee payment under the ~~required processing fee, if applicable,~~ Assignment and ~~delivery of notice to the assigning Lender pursuant to Section 13.1(b)~~Acceptance, 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 Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any ~~time~~ time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a “"Participant”") participating interests in ~~all or any portion of its~~ the Obligations, ~~its~~ the Commitment, and the other rights and interests of that Lender (the ~~“Originating~~ "originating Lender”") hereunder and under the other Loan ~~Documents~~Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the ~~Originating Lender shall remain a “~~originating Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the ~~Originating~~ originating Lender shall remain solely responsible for the performance of such obligations, (iii) ~~Borrower, Agent,~~ Borrower and ~~the Lenders~~ Agent shall continue to deal solely and directly with the ~~Originating~~ originating Lender in connection with the ~~Originating~~ originating Lender’s '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 sole and exclusive 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~~ a material portion 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),~~ Lender; or (E) ~~decreases~~ change the amount or ~~postpones the~~ due dates of scheduled principal repayments or prepayments or ~~premiums payable to such Participant through such Lender,~~ premiums; and (v) 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~~ 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~~ 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, Borrower, the ~~Collections of Borrower or its Subsidiaries~~Collections, 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~~participation, a Lender ~~may, subject to the provisions of Section 17.9,~~ may disclose all documents and information which it now or hereafter may have relating to Borrower ~~and its Subsidiaries and their respective businesses~~or Borrower's business. (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 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~~203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) 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 one or both of the Term Loans (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 each 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 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), 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 Term Loans 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 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 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 copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.

Appears in 1 contract

Sources: Loan and Security Agreement (Southwest Royalties Holdings Inc)

Common use of Assignments and Participations Clause in Contracts