Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement. (b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents. (c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold. (d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Assignments and Participations. Any Lender may, with the written consent of Agent (aprovided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") Each Funding Agentall, each or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to an Eligible Transferee that is a Related Fund of a Lender or an Affiliate of a Lender); provided, however, that Borrowers and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the Transferred Assets amount of $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 Eligible Transferee that is a Related Fund of a Lender or an Affiliate of a Lender. From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Assignee. By executing and delivery of delivering an Assignment and Assumption Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (b4) None 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, (5) 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 (6) such Assignee agrees that it will perform all of the Transferorobligations which by the terms of this Agreement are required to be performed by it as a Lender. Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of such fully executed Assignment and Acceptance, ▇▇▇▇▇ or this Agreement shall be deemed to be amended to the Servicer 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. Any Lender may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 14.1(e) (other than clause (v) of this Section) are solely for the Servicer to benefit of the Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of such provisions. In connection with any such Participant shall be limited assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Borrowers or Borrowers' business. Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Sections 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law. Administrative Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of the Term Loan C held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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), Borrowers shall treat the Person in whose name such Term 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register on behalf of Administrative Borrower. In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Sources: Loan and Security Agreement (Elgin National Industries Inc)
Assignments and Participations. (a) Each Funding AgentSubject to Buyer's right to prior written approval, not to be unreasonably withheld, at such time as no Default or Event of Default has occurred and is continuing, Lender may assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents; provided, however, that Obligors may continue to deal solely and directly with 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 by Lender and the Assignee, and (ii) Lender and its Assignee have delivered to Borrower an appropriate assignment and acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the sole benefit of Borrower that, so long as no Event of Default has occurred and is continuing, Lender shall (x) retain at least 50.1 percent of the Obligations and commitment to make Advances under Section 2.1 of this Agreement, and (y) not assign without any prior ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time; provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees 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 Lender.
(b) From and after the date that Lender provides Borrower with such written consentnotice and executed assignment and acceptance agreement, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an it pursuant to such assignment hereunderand acceptance agreement, both shall have the assignee assigned and delegated rights and obligations of Lender under the assignor Loan Documents, and (includingii) Lender shall, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the that rights and obligations hereunder owned and under the other Loan Documents have been assigned and delegated by itit pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) to and be released from its Conduit Support Providers obligations under this Agreement (and (ii) a Conduit Support Provider to assign, participate, in the case of an assignment and acceptance covering all or otherwise transfer any the remaining portion of the Transferred Assets (and the Lender's rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Obligors and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayImmediately upon Borrower's receipt of such fully executed assignment and acceptance agreement, in this Agreement shall be deemed to be amended to the ordinary course extent, but only to the extent, necessary to reflect the addition of its business the Assignee and in accordance with applicable law, the resulting adjustment of the rights and duties of Lender arising therefrom.
(d) Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a ParticipantLender hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Obligors and the Funding Agents Lender shall continue to deal solely and directly with such Owner each other in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.other Loan
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole or a minimum amount of $500,000; provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the Transferred Assets form of Exhibit A; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $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 assignor Lender that it has received a fully executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such 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 Persons who is (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrowers and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 a material portion of the Collateral (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 hereunder in which such Participant is participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such participating interest Participant is participating; and (v) all amounts payable by Borrower hereunder shall be determined as if such Originating Lender had not restrict sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or condition such Owner’s right to agree to any amendmentshall have been declared or shall have become due and payable upon the occurrence of an Event of Default, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the benefits same extent as if the amount of Article VIII its participating interest were owing directly to it as though they were Ownersa Lender under this Agreement; provided, however, that all no Participant may exercise any such amounts payable right of setoff without the notice to and consent of Agent. The rights of any Participant shall only be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 15.1(e) are solely for the Servicer to benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, Bank in accordance with Regulation A of the FRB or U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or locatedTreasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Areawide Cellular Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender or an Affiliate of a Lender), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except that such minimum amount shall not apply to any Affiliate of a Lender or any fund or account managed by a Lender or an Affiliate of 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 Assignment and Acceptance in form and substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or the Assignee is an Affiliate of or a fund money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment, if applicable, under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a Related Fund or account managed by a Lender provided that if the minimum amount is not met Administrative Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee); provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 (y) such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the Conduit Purchasers business or loan portfolio of such Lender or (z) the assignee is an Affiliate of a Lender or a Related Fund.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Administrative Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of the Term Loan held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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), Administrative 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(z), the Lender that is the assignee shall maintain a comparable Register on behalf of Borrowers.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the Obligations (other than Bank Product 109 Obligations), the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender or to a Related Fund or to an assignment of all of such Lender's rights and obligations); provided, however, that 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 substance reasonably satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or (y) the assignee is an Affiliate (other than individual(s)) of a Lender or a Related Fund. Furthermore, for the avoidance of doubt, any assignment or delegation of any Bank Product Agreement may be effected by the parties thereto without the consent of the Lender Group.
(b) Subject to recordation in accordance with Section 14.1(h) below, from and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in partas applicable, its interest in (i) the Transferred Assets and Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Section 16 and delivery Section 17.8 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(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 Borrowers or the performance or observance by Borrowers 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 110 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.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (1) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (2) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (3) 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, (4) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or (5) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor and the Servicer agree that each rights of any Participant shall only be entitled 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 benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) Pursuant to Section 17.10, if any proposed assignee or participant has agreed in writing to receive any documents or information subject to the confidentiality provisions contained in this Agreement, in connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender (i) may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or United States Treasury Regulation 31 C.F.R. SECTION 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under Applicable Laws, and (ii) that is a Fund may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to its trustee to support its obligations to its trustee, on behalf of the holders of such obligations.
(h) Subject to the last sentence of this Section 14.1(h), Agent shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Advance, as the case may be, held by such Lender. 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). Subject to the last sentence of this Section 14.1(h), 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 an assignment or sale of any Registered Loan (and the Registered Note, if any, evidencing the same), Borrowers, Agent and the Lenders 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 an assignment or delegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a register comparable to the Register on behalf of Agent.
(i) In the event that a Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(j) Notwithstanding any other provision hereof, the Lenders hereby consent to any Lender's pledge (a "Pledge") of its Net Investmentinterest in the Obligations, the Commitment, and the other rights and interests of that Lender (a "Loan Pledgor") to any Eligible Transferee that has extended a credit facility to such Loan Pledgor (a "Loan Pledgee"), on the terms and conditions set forth in this paragraph. Upon written notice by any Loan Pledgor to Agent that the Pledge has been effected, Agent agrees to acknowledge receipt of such notice and thereafter agrees: (a) to use its best efforts to give Loan Pledgee written notice of any default by Loan Pledgor under this Agreement and any amendment, modification, waiver or termination of Loan Pledgor's rights under this Agreement; provided, however, Agent shall not have any liability to Loan Pledgee if Agent fails to give such notice; (b) that Agent shall deliver, at the Related Documents expense of Loan Pledgor, to secure Loan Pledgee such information available to the Lenders hereunder as Loan Pledgee shall reasonably request; and (c) that, upon written notice (a "Redirection Notice") to Agent by Loan Pledgee that Loan Pledgor is in default, beyond applicable cure periods, under Loan Pledgor's obligations to Loan Pledgee pursuant to the applicable credit agreement between Loan Pledgor and Loan Pledgee (which notice need not be joined in or confirmed by all Lenders), and until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, any payments to which Loan Pledgor is entitled from time to time pursuant to this Agreement, or any other Loan Document, shall be paid or directed to Loan Pledgee. The relevant Loan Pledgor hereby unconditionally and absolutely releases Agent and the other Lenders from any liability to the such Loan Pledgor on account of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation Agent's or any Lender's compliance with any Redirection Notice reasonably believed by Agent or the central bank of any nation or other political body Lenders to have been delivered in which it is domiciled or locatedgood faith. Loan Pledgee shall be permitted fully to exercise its rights and remedies against the relevant Loan Pledgor, and realize on any Conduit Purchaser may assign and all ofcollateral granted by such Loan Pledgor to Loan Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), or in accordance with Applicable Laws and the grant provisions of a security interest in (or pledge of) all or any portion ofthis Agreement. In such event, such Conduit Purchaser’s respective rights underAgent and the Lenders shall recognize Loan Pledgee, interest inand its successors and assigns that are Eligible Transferees, title as the successor to the applicable Loan Pledgor's rights, remedies and obligations under this Agreement and the Related Documents to Loan Documents. The rights of Loan Pledgee under this paragraph shall remain effective unless and until such Loan Pledgee shall have notified Agent in writing that its interest in the respective collateral agent or trustee under Obligations, the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption AgreementCommitment, and Sections 9.7(a) the other rights and 9.7(c) shall not apply to any such pledge or grant interests of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretothe relevant Loan Pledgor has terminated.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent and, so long as no Default or Event of Default has occurred and is continuing, Administrative Borrower (provided that no written consent of Agent or Administrative Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent or Administrative 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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received a duly executed Assignment and their respective assignees may assign without any prior written consentAcceptance complying with the requirements of Section 14.1(a) and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agentsthereto).
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and - 76 - 82 interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (SCB Computer Technology Inc)
Assignments and Participations. The Bank may at any time assign to one or more banks or other institutions (a) Each Funding Agenteach an "Assignee"), each whose creditworthiness is in Honeywell's reasonable opinion, comparable to that of the Conduit Purchasers Bank, all, or a proportionate part of all, of its rights under this Agreement and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment promissory note evidencing Loans made hereunder, both the assignee with and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver subject to the Transferorconsent of Honeywell, which consent shall not be unreasonably withheld; provided, however, that if an Assignee is an affiliate of the Servicer Bank, and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriasuch affiliate's creditworthiness is rated at least A by S&P or A2 by Mood▇'▇, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to ▇▇en no such extent as may be necessary to reflect such assignment (and Schedule I hereto consent shall be deemed to be amended accordingly)required. Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern Bank may at any time, without the ability consent of (i) a Conduit Purchaser to assignHoneywell, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) assign all or any portion of, their respective of its rights under, interest in, title to and obligations under this Agreement and any promissory note evidencing Loans made hereunder, to a Federal Reserve Bank (provided, however, that no such assignment to a Federal Reserve Bank shall release the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer Bank from its obligations hereunder). The Bank may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell grant to one or more Persons who is banks or other institutions (each a Permitted Transferee (each, a “"Participant”") participating interests in its Commitment, or any or all or a portion of its rights Loans, with and obligations hereundersubject to the consent of Honeywell, which consent shall not be unreasonably withheld; provided that if a Participant is an affiliate of the Bank, and such affiliate's creditworthiness is rated at least A by S&P or A2 by Mood▇'▇, ▇▇en no such consent shall be required. Notwithstanding In the event of any such sale grant by an Owner the Bank of a participating interests interest to a Participant, (i) such Owner’s rights and obligations under this Agreement whether or not upon notice to Honeywell, the Bank shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofof its obligations hereunder, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Borrowers shall continue to deal solely and directly with such Owner the Bank in connection with such Owner’s the Bank's rights and obligations under this Agreement. Each Owner agrees that any Any agreement between pursuant to which the Bank may grant such Owner and any such Participant in respect of such a participating interest shall not restrict or condition such Owner’s provide that the Bank shall retain the sole right and responsibility to agree to any amendment, supplement, waiver or modification enforce the obligations of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (Borrowers hereunder including, without limitation, rights the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that the Bank will not agree to any modification, amendment or waiver of this Agreement (i) which increases or decreases the Commitment Amount or (ii) reduces the principal of or rate of interest on any Loan or fees hereunder or (iii) postpones the date fixed for any payment of principal and of or interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all Loan or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case fees hereunder without the execution and delivery consent of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretothe Participant.
Appears in 1 contract
Sources: Revolving Credit Agreement (Honeywell Acquisition Corp)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent and Borrower (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 any Person that is organized in or under the laws of any jurisdiction other than 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”) if payments to such Person would require Borrower to pay any Taxes or any additional amounts pursuant to Section 16.11(e)), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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 ordinary course 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 business 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 accordance 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 applicable lawsuch 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is a Permitted Transferee (each, a “Participant”) participating or other beneficial interests (“Participating Interests”) in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale Participating Interests by a Lender to an Owner of participating interests to a ParticipantEligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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 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, or (E) reduce the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower 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-off in respect of such participating interest shall not restrict or condition such Owner’s right its Participating Interest in amounts owing under this Agreement to agree the same extent as if the amount of its Participating Interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or Participating Interest or proposed assignment or Participating Interest, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower’s business, so long as such Lender has first secured a customary confidentiality agreement from such proposed assignee or Participant.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum Commitment amount (if such assignment is a partial assignment) of $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, shall have been given to Borrower and Agent by such Lender and the Assignee; and (ii) such Lender and its Assignee
1. 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 in partother 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 assignor Lender that it has received a fully executed Assignment and Acceptance (i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agentsthereto).
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 the execution of the 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 and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such 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 Persons who is (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrowers and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between such Owner and participating interest under which the Participant has any such Participant right to consent to any departure by Borrower or the Lender Group from any provision of this Agreement or any Loan Documents, or to the exercising or refraining from exercising of any powers or rights which any Lender may have under or in respect of such participating interest shall not restrict or condition such Owner’s the Loan Documents (including, without limitation, the right to agree enforce the Obligations hereunder), or to approve or prohibit any amendmentamendment to, supplementor 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 modification 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 a material portion of the Collateral (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 hereunder in which such Participant is participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant is participating; and (v) all amounts payable by Borrower hereunder shall be determined as if such Originating Lender had not sold such participation; except that, if amounts outstanding under this Agreement. The Transferor Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the Servicer agree that occurrence of an Event of Default, each Participant shall be entitled deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the benefits same extent as if the amount of Article VIII its participating interest were owing directly to it as though they were Ownersa Lender under this Agreement; provided, however, that all no Participant may exercise any such amounts payable right of setoff without the notice to and consent of Agent. The rights of any Participant shall only be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Transferor Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such provisions and shall not have its rights or obligations under any of the Servicer to Loan Documents increased, decreased, or otherwise affected by any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldparticipation.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business so long as such third party agrees in writing to the provisions of Section 17.16(d) in respect thereof.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, Bank in accordance with Regulation A of the FRB or U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or locatedTreasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to (i) an assignment to a member of an affiliated group of Lenders so long as the aggregate amount of the assignment being made to such affiliated group meets or exceeds such minimum, and (ii) an assignment and delegation by any Lender to an Affiliate of a Lender or to any Related Fund); provided, however, that, subject to the provisions of Section 13.1(c) herein, Borrowers and Agent may continue to deal solely and directly with such Lender in partconnection 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 Agent by such Lender and the Assignee, (ii) such Lender and its interest Assignee have delivered to Agent an Assignment and Acceptance, (iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the Transferred Assets amount of $5,000 (if required), and (iv) Assignee has delivered to the Agent all forms necessary to establish an exemption from withholding Taxes pursuant to the provisions of Section 15.11(b) and 15.11(c), hereof. 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) Subject to the provisions of Section 13.1(c) herein, 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, payment of the above-referenced processing fee (if required), and the above-referenced Tax forms (if required) (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assigning Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 16.7 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Notwithstanding anything contained in this Section 13.1 to the contrary, (i) a Lender may assign any or all of its rights hereunder to an Affiliate of such Lender or a Related Fund without paying any fees required under clause (a) of this Section 13.1 and (ii) a Lender may assign any or all of its rights hereunder to a Qualified Affiliate of such Lender or a Qualified Related Fund without (A) providing any notice required under clause (a) of this Section 13.1 or (B) delivering an executed Assignment and Acceptance to Agent; provided, that (x) Borrowers and Agent may continue to deal solely and directly with the assigning Lender until an Assignment and Acceptance has been delivered to Agent, (y) the failure of such assigning Lender to deliver an Assignment and Acceptance to Agent shall not affect the legality, validity or binding effect of such assignment, and (z) an Assignment and Acceptance between an assigning Lender and its Qualified Affiliate or Qualified Related Fund shall be effective as of the date specified in such Assignment and Acceptance. Any Owner mayLender making an assignment to a Qualified Affiliate or a Qualified Related Fund hereby agrees to maintain a comparable register as set forth in Section 13.1(i) below and to require that the Qualified Affiliate or Qualified Related Fund that is the assignee from time to time deliver to such Lender maintaining such comparable register all documentation necessary or appropriate to evidence such assignee’s exemption from United States withholding tax.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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.
(e) Immediately upon Agent’s receipt of the processing fee payment (if required), the fully executed Assignment and Acceptance (or the assigning Lender’s receipt of a fully executed Assignment and Acceptance, in the ordinary course case of an assignment from a Lender to one or more of its business Qualified Affiliates or Qualified Related Funds, as to which the assigning Lender has not delivered an Assignment and in accordance with applicable lawAcceptance to Agent), and the above-referenced Tax forms (if required), this Agreement, subject to the terms of Sections 13.1(c) and 13.1(i), 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.
(f) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a any portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections of Article VIII as though they were Owners; providedBorrowers or their Subsidiaries, that all such amounts payable 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 Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(dg) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 16.7, disclose all documents and information which it now or hereafter may have relating to Borrowers and their Subsidiaries and their respective businesses.
(h) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in 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 or any other Person, including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body as provided in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper programSection 2.16, in each case without the execution and delivery consent of an Assignment and Assumption Agreementany party hereto, and Sections 9.7(a) and 9.7(c) shall not apply to any such Person may enforce such pledge or grant of a security interest described in this clause (e)any manner permitted under applicable law; provided that no such pledge or grant of a security interest shall release any Owner a Lender from any of its obligations hereunder or substitute any such pledgee or grantee secured party (or any transferee thereof) for such Owner Lender as a party heretohereto unless such pledgee or secured party (or transferee) becomes a Lender hereunder.
(i) The Agent shall, on behalf of and acting as a non-fiduciary agent on behalf of Borrowers, maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of each Loan held by such Lender and the principal amount of such Loans (with stated interest thereon). Other than in connection with an assignment by a Lender of all or any portion of its Loan to a Qualified Affiliate of such Lender or a Qualified Related Fund of such Lender pursuant to Section 13.1(c) that is not disclosed to Agent (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) on the Register, Borrowers and Agent shall treat the Person in whose name such Loan (and the Registered Note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon 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 Loan to a Qualified Affiliate of such Lender or a Qualified Related Fund of such Lender, and which assignment is not delivered to the Agent in accordance with Section 13.1(c) hereof, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. Administrative Borrower shall have the right to inspect the Register at any time and from time to time, upon reasonable notice.
(j) In the event that a Lender sells participations in any Loan hereunder, such Lender, on behalf of Borrowers, shall maintain a register on which it enters the name of all participants in the Loans held by it and the principal amount (with stated interest thereon) of the portion of the Loans which are the subject of the participation (the “Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each Registered Note shall expressly so provide). Any participation of such Loan (and the Registered Note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without an "Assignee") all, or any prior written consent, in whole or 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 of $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 Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the Transferred Assets amount of $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 assignor Lender that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); PROVIDED, HOWEVER, that (i) such Owner’s rights and the originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor and the Servicer agree that each rights of any Participant shall only be entitled derivative through the originating Lender with whom such Participant participates, and no Participant shall have any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentLender may assign and delegate to one or more assignees (each an "Assignee") all, each or any ratable part of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents; provided, however, that Borrowers may continue to deal solely and directly with 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 by Lender and the Assignee an appropriate assignment and acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the benefit of Borrowers that, so long as no Event of Default has occurred and is continuing, Lender shall (x) retain more than fifty percent (50%) of the Obligations and commitment to make Advances under Section 2.1 of this Agreement, and (y) not assign without any prior ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time, provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees 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 Lender.
(b) From and after the date that Lender provides Administrative Borrower with such written consentnotice and executed assignment and acceptance agreement, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an it pursuant to such assignment hereunderand acceptance agreement, both shall have the assignee assigned and delegated rights and obligations of Lender under the assignor Loan Documents, and (includingii) Lender shall, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the that rights and obligations hereunder owned and under the other Loan Documents have been assigned and delegated by itit pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) to and be released from its Conduit Support Providers obligations under this Agreement (and (ii) a Conduit Support Provider to assign, participate, in the case of an assignment and acceptance agreement covering all or otherwise transfer any the remaining portion of the Transferred Assets (and the Lender's rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayImmediately upon Borrower's receipt of such fully executed assignment and acceptance agreement, in this Agreement shall be deemed to be amended to the ordinary course extent, but only to the extent, necessary to reflect the addition of its business the Assignee and in accordance with applicable law, the resulting adjustment of the rights and duties of Lender arising therefrom.
(d) Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a ParticipantLender hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrowers and the Funding Agents Lender shall continue to deal solely and directly with such Owner each other in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) Lender shall not transfer or grant any agreement between 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 Owner and 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 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 Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through Lender and the Servicer agree that each no Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor have any rights under this Agreement or the Servicer other Loan Documents or any direct rights as to any such Borrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall be limited have the right to participate directly in the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldmaking of decisions by Lender.
(de) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(f) Any Owner other provision in this Agreement notwithstanding, Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming Corp)
Assignments and Participations. (a) Each Funding AgentAny Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of U.S. $1,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a Related Fund or account managed by a Lender); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Borrower and Agent a fully executed Assignment and Acceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the Transferred Assets amount of U.S. $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 assignor Lender (with a copy to Borrower) that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgement by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion its Obligations owing to such Lender, the Commitment of its such Lender, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no originating Lender shall transfer or grant any agreement between 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 Owner and 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 (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, (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant is participating or (F) subordinate the Liens of Agent to the Liens of any other creditor of Borrower, and 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 Unmatured Default or Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits of Article VIII as though they were Owners; providedother Lenders, that all such amounts payable by Agent, Borrower, the Transferor Collections or the Servicer to any such Collateral or otherwise in respect of the Obligations. No Participant shall be limited have the right to participate directly in the amounts which would making of decisions by Lenders among themselves. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and Borrower shall not have been payable to the Owner selling any rights as a third party beneficiary of such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender residing in the United States may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss. 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Advance held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register on behalf of Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
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Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a Related Fund or account managed by a Lender); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Borrower and Agent an Assignment and Acceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the Transferred Assets amount of $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 (y) 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 (z) the Assignee is an Affiliate of a Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 17.8 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 payment and the 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 who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections of Article VIII as though they were Owners; providedBorrower or its Subsidiaries, that all such amounts payable 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 Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 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 Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.24, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Agent, in its capacity as agent for the Borrower, shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of the Borrowings held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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), Agent shall treat the Person in whose name such Registered Loan (and the Registered Note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of an assignment or any portion ofdelegation covered by Section 14.1(a)(z), the Lender that is the assignee shall maintain a comparable Register on behalf of Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the “Participant Register”). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
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Assignments and Participations. (a) Each Funding AgentThe Lender may, each without consent of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇▇ or the Servicer may Borrower during the continuance of an Event of Default and at all other times with the prior written consent of ▇▇▇▇▇▇ and the Borrower, which consents shall not be unreasonably withheld or delayed:
(a) sell, assign, transfer and grant an interest in any or all of the Commitments under any or all of the Credit Facilities, the Loans under such Credit Facilities and its rights under the Documents; and
(b) grant one or more participations in any or all of the Commitments under any or all of the Credit Facilities, the Loans under such Credit Facilities and its rights under the Documents; to:
(c) any Person(s) during the continuance of an Event of Default; and
(d) any other financial institution(s) which are resident in Canada for the purposes of the Income Tax Act (Canada), and in such case the Borrower shall not be under obligation to pay by way of withholding tax or otherwise any greater amount than it would have been obliged to pay if the Lender had not made such sale, assignment, transfer or grant, and further provided that no sale, assignment, transfer or grant of less than all of the Lender’s interest in the Commitment(s), the Loans under such Credit Facilities and its rights under the Documents shall result in any Person having less than Cdn. $5,000,000.00 of the Total Commitment. Upon any such sale, assignment, transfer or grant, the Lender shall have no further obligation hereunder with respect to such interest. Upon any such sale, assignment, transfer or grant, the granting Lender, the new Lender, ▇▇▇▇▇▇ and the Borrower shall execute and deliver an assignment agreement. The Borrower shall not assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner maythe Lender, in the ordinary course of its business and in accordance with applicable law, at any time sell such consent not to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of be unreasonably withheld. ▇▇▇▇▇▇ shall not assign its rights and or obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case hereunder without the execution and delivery prior written consent of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretothe Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereof, and of such obligations; (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents; (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Factory Card Outlet Corp)
Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) all, each or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that (w) a Lender may not assign without all or any portion of the Obligations or the Commitments to Borrower, any Permitted Holder or any Affiliate thereof, (x) the prior written consentconsent 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 whole 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 (iii) the assigning Lender or in part, its interest Assignee has paid to Agent for Agent’s separate account a processing fee in the Transferred Assets amount of $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 payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assigning Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 17.7 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 payment and the 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 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 who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor 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 Servicer agree principal amounts (and stated interest) of each Participant’s interest in the Obligations (the “Participant Register”); provided that each 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 entitled conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldcontrary.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 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 Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.24, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of the Borrowers and the Agent, which consents shall not be unreasonably withheld, at any time assign and delegate to one or more Eligible Assignees (provided, that no written consent of a Borrower or the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender or to any other Lender) (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Loans, the Revolving Loan Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder, in whole or a minimum amount of Five Million Dollars ($5,000,000); provided, however, that the Borrowers and the Agent may continue to deal solely and directly with such Lender in partconnection 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 the Borrowers and the Agent by such Lender and the Assignee; (ii) such Lender and its interest Assignee shall have delivered to the Borrowers and the Agent an Assignment and Acceptance Agreement in the Transferred Assets form of Exhibit N ("Assignment and Acceptance Agreement") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee has paid to the Agent a processing fee in the amount of Three Thousand Dollars ($3,000).
(b) From and after the date that the Agent notifies the assignor Lender that it has received (and provided its consent and the Borrowers have consented (to the extent necessary herein) with respect to) an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunderit pursuant to such Assignment and Acceptance Agreement, both shall have the assignee rights and obligations of a Lender under the Loan Documents, and (ii) the 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 Agreement, relinquish its rights and be released from its obligations under the Loan Documents.
(includingc) Within five (5) Banking Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (and provided, as appropriatethat it consents to such assignment pursuant to Section 10.11(a)), the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to Borrowers shall execute and deliver to the TransferorAgent, new Notes evidencing such Assignee's assigned Loans and Revolving Loan Commitment and, if the assignor Lender has retained a portion of its Loans and its Revolving Loan Commitment, replacement Notes in the principal amount of the Revolving Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Servicer and Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Administrative Agent an Assignment and Assumption Acceptance Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto this Agreement, shall be deemed to be amended accordingly). Notwithstanding to the foregoingextent, but only to the applicable Conduit Support Documents shall govern extent, necessary to reflect the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion addition of the Transferred Assets (Assignee and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion resulting adjustment of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support ProviderRevolving Loan Commitments arising therefrom. The Transferor and Revolving Loan Commitment allocated to each Assignee shall reduce such Revolving Loan Commitments of the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreementassigning Lender pro tanto.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(cd) Any Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks or other Persons who is not Affiliates of either Borrower (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion any Loans, the Revolving Loan Commitment of its rights that Lender and obligations hereunder. Notwithstanding any such sale by an Owner the other interests of participating interests to a Participantthat Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s rights and the originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrowers and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the respective collateral agent extent such amendment, consent or trustee waiver would require unanimous consent of the Lenders as described in the first proviso to Section 10.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.3, 4.4, 4.5, 4.6 and 10.4 as though it were also a Lender hereunder, but shall not have any other rights under this Agreement, or any of the applicable Conduit Purchaser’s Commercial Paper programother Loan Documents, and all amounts payable by 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.
(e) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided by the Borrowers and provided to it by or on behalf of Dura, MC, either the Borrower or any Subsidiary of Dura, or by the Agent on Dura's, MC's, a Borrower's or Subsidiary's behalf, in each case without the execution and delivery of an Assignment and Assumption Agreementconnection with this Agreement or any other Loan Document, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than Dura, MC, the Borrowers or any Subsidiary, provided, that such source is not bound by a confidentiality agreement with the applicable Borrower known to the Lender; provided further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any governmental authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Agent, any Lender or their respective Affiliates may be party, (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document, and (F) to such Lender's independent auditors and other professional advisors; provided, that with respect to disclosures required by clauses (B), (C) or (D) above, Agent and any Lender will give prior notice to the applicable Borrower of any such required disclosure, unless such notice is prohibited by the terms of such required disclosure, as determined by Agent or such Lender. Notwithstanding the foregoing, each Borrower authorizes each Lender to disclose to any bona fide Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning such Borrower or its Subsidiaries which has been delivered to Agent or the Lenders pursuant to this Agreement or which has been delivered to the Agent or the Lenders by such Borrower in connection with the Lenders' credit evaluation of such Borrower prior to entering into this Agreement; provided, that, unless otherwise agreed by such Borrower, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder.
(f) Notwithstanding any other provision contained in this Agreement or any other Loan Document to the contrary, any Lender may assign all or any portion of the Loans or Notes held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank, provided, that any payment in respect of such assigned Loans or Notes made by a Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy such Borrower's obligations hereunder in respect to such assigned Loans or substitute Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) BofA may assign its obligations as an Issuer to an Affiliate of BofA without the prior written consent of any party hereto. In connection with such pledgee assignment, each of the parties hereto agrees to execute such documents as are reasonably requested by such Affiliate of BofA to effectuate such assignment.
(h) If, pursuant to this subsection, any interest in this Agreement or grantee any Note is transferred to any Transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, (i) to represent to the transferor Lender (for the benefit of the transferor Lender, the Agent and the Borrowers) that, under applicable law and treaties as then in effect, no taxes will be required to be withheld by the Agent, the Borrowers or the transferor Lender with respect to any payments to be made to such Owner Transferee in respect of the U.S. Revolving Loans made in Dollars, (ii) to furnish to the transferor Lender, the Agent and the Borrowers either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such Transferee claims entitlement to complete exemption from U.S. federal withholding tax on all interest payments with respect to the U.S. Revolving Loans hereunder), and (iii) to agree (for the benefit of the transferor Lender, the Agent and the Borrowers) to provide the transferor Lender, the Agent and the Borrowers a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such Transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(i) The Agent shall maintain at the address of its Domestic Office set forth on the signature page hereto a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Loan Commitments of, and principal amount of the Revolving Loans owing to, each Lender from time to time and participations in Letters of Credit (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a party heretoLender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Dura Automotive Systems Inc)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees Any Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (each, a each an “ParticipantAssignee”) participating interests in all that are Eligible Transferees all, or a portion any ratable part of its all, of the Obligations, the Term Loan Commitments and the other rights and obligations hereunder. Notwithstanding any of such sale by an Owner Lender hereunder and under the other Loan Documents; provided, however, that, subject to the provisions of participating interests to a ParticipantSection 13.1(c) herein, (i) such Owner’s rights Borrowers and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Agent an Assignment and Acceptance, (iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000 (if required), and (iv) Assignee has delivered to the Agent all forms necessary to establish an exemption from withholding Taxes pursuant to the provisions of Section 15.11(b) and Section 15.11(c), hereof. 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) Subject to the provisions of Section 13.1(c) herein, 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, payment of the above-referenced processing fee (if required), and the above-referenced Tax forms (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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assigning Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 10.3 hereof) and interest on its Net Investment) be released from any future obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaseran assigning Lender’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 Article 16 and Section 16.7 of this Agreement.
(c) Notwithstanding anything contained in this Section 13.1 to the respective collateral agent contrary, (i) a Lender may assign any or trustee all of its rights hereunder to an Affiliate of such Lender or a Related Fund without paying any fees required under clause (a) of this Section 13.1 and (ii) a Lender may assign any or all of its rights hereunder to a Qualified Affiliate of such Lender or a Qualified Related Fund without (a) providing any notice required under clause (a) of this Section 13.1 or (b) delivering an executed Assignment and Acceptance to Agent; provided, that (x) Borrowers and Agent may continue to deal solely and directly with the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of assigning Lender until an Assignment and Assumption AgreementAcceptance has been delivered to Agent, (y) the failure of such assigning Lender to deliver an Assignment and Acceptance to Agent shall not affect the legality, validity or binding effect of such assignment, and Sections 9.7(a(z) an Assignment and 9.7(cAcceptance between an assigning Lender and its Qualified Affiliate or Qualified Related Fund shall be effective as of the date specified in such Assignment and Acceptance. Any Lender making an assignment to a Qualified Affiliate or a Qualified Related Fund hereby agrees to maintain a comparable register as set forth in Section 13.1(i) shall not apply below and to any require that the Qualified Affiliate or Qualified Related Fund that is the assignee from time to time deliver to such pledge Lender maintaining such comparable register all documentation necessary or grant of a security interest described in this clause (e); provided that no appropriate to evidence such pledge or grant of a security interest shall release any Owner assignee’s exemption from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoUnited States withholding tax.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Assignments and Participations. (a) Each Funding AgentLender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any ratable part of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents; provided, however, that the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing, or (2) such assignment is to a Lender or an Affiliate of a Lender; provided, further, that Borrower may assign without continue to deal solely and directly with 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 by Lender and the Assignee, and (ii) Lender and its Assignee have delivered to Borrower an appropriate assignment and acceptance. Anything contained herein to the contrary notwithstanding, (X) the Assignee need not be an Eligible Transferee if such assignment is in connection with any prior merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender, (Y) such assignment shall be made at no cost to Borrower and shall not result in any additional reporting or other requirements for Borrower, and (Z) shall not result in Borrower reporting to more than a single Lender entity.
(b) From and after the date that Lender provides Borrower with such written consentnotice and executed assignment and acceptance (i) the Assignee thereunder shall be a party hereto and, in whole or in part, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted it pursuant to such extent as may be necessary to reflect such assignment (and Schedule I hereto acceptance, shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an assignment and consent to the complete assignment by the applicable Owners of acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofthereto), and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner such assignment shall effect a novation between Borrower and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldAssignee.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $2,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(or pledge ofh) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and Notwithstanding anything in the Related Loan Documents to the respective collateral agent contrary, (i) CapitalSource and its Affiliates shall not be required to obtain Borrowers’ or trustee under the applicable Conduit PurchaserAgent’s Commercial Paper program, in each case without the execution and delivery of consent or to execute or deliver an Assignment and Assumption AgreementAgreement in connection with any transaction involving CapitalSource and any of its Affiliates, or the lenders or funding or financing sources of CapitalSource or any of its Affiliates, (ii) subject to the provisions at the end of this paragraph, no lender to or Affiliate, funding or financing source of CapitalSource or any of its Affiliates shall be considered a Lender, and Sections 9.7(a(iii) and 9.7(cthere shall be no limitation or restriction on (A) shall not apply the ability of CapitalSource or any of its Affiliates to assign or otherwise transfer any Loan Document, Commitment or Obligation to any such pledge Affiliate or grant of a security interest described in this clause lender or financing or funding source or (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute B) any such pledgee lender’s or grantee for such Owner funding or financing source’s ability to assign or otherwise transfer any Loan Document, Commitment or Obligation; provided, however, CapitalSource shall continue to be liable as a party hereto“Lender” under the Loan Documents unless such Affiliate, lender or funding or financing source executes and delivers an Assignment and Assumption Agreement and thereby becomes a “Lender.”
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except such minimum amount shall not apply to an Affiliate of a Lender or a Related Fund); provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or (y) the assignee is an Affiliate of Lender or a Related Fund.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment (if applicable) of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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 Borrowers or the performance or observance by Borrowers 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.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion its Obligations owing to such Lender, the Commitment of its such Lender, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 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; (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant 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 Loan Party; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 14.1(e) are solely for the Servicer to benefit of the Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Administrative Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Term Loan and each Advance, as the case may be, held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register (other than with respect to an assignment or delegation covered by Section 14.1(a)(y)), together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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), Borrowers shall treat the Person in whose name such 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register, on behalf of Administrative Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 736942168 19632398738387080 under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Sources: Receivables Purchase and Administration Agreement (T-Mobile US, Inc.)
Assignments and Participations. (a) Each Funding AgentWith the consent of Administrative Entity (which consent of Administrative Entity shall not be (x) required if an Event of Default has occurred and is continuing, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed), any Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (each, a each an “ParticipantAssignee”) participating interests in all that are Eligible Transferees all, or a portion any ratable part of its all, of the Obligations, the Revolver Commitments, the Loans and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (or the remaining amount of any such sale by an Owner Lender’s Revolver Commitment or amount of participating interests to a ParticipantLoans, (i) such Owner’s rights if less); provided, however, that Borrower and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, 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 Administrative Entity and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Entity and Agent an Assignment and Acceptance, fully executed and delivered by each party thereto, and (iii) 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 satisfying clause (a) above and payment of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assigning Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 8.2 hereof) and interest on its Net Investment) be released from any future obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaseran assigning Lender’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreementthereto), and Sections 9.7(a) such assignment shall effect a novation between Borrower and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e)the Assignee; provided provided, however, that no such pledge or grant of a security interest nothing contained herein shall release any Owner assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 8.2(b) of this Agreement relating to any period prior to the effectiveness of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoassignment.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any ratable part of all, of the Conduit Purchasers Obligations, the Revolver Commitments and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower and Agent may continue to any Permitted Transferee. To effectuate deal solely and directly with such Lender in connection with the interest so assigned to an assignment hereunderAssignee until (i) written notice of such assignment, both together with payment instructions, addresses, and related information with respect to the assignee Assignee, have been given to Borrower and Agent by such Lender and the assignor Assignee, (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(sii) such Lender and its Funding Agent) will be required Assignee have delivered to execute Borrower and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption AgreementAcceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Following any assignment in accordance with Anything contained herein to the foregoing criteriacontrary notwithstanding, the Ownership Group Percentage payment of any fees shall not be required and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will Assignee need not be adjusted to such extent as may be necessary to reflect an Eligible Transferee if such assignment (and Schedule I hereto shall be deemed to be amended accordingly)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 applicable Conduit Support 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 govern not be unreasonably withheld and which consent shall not be required after the ability occurrence and during the continuance of an Event of Default.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a Conduit Purchaser party hereto and, to assignthe extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, participate, or otherwise transfer any portion of the Transferred Assets (and shall have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 17.8 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 payment and the 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 who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Revolver Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections of Article VIII as though they were Owners; providedany Credit Party, that all such amounts payable 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 Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 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 Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (includingunder and interest in this Agreement, including without limitation, rights to payment in favor of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation U.S. Treasury Regulation 31 CFR §203.24 (and such Federal Reserve Bank may enforce such pledge or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in any manner permitted under applicable law).
(or pledge ofh) all or any portion 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 Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents Lender pursuant to the respective collateral agent or trustee under 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 applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery terms hereof as a Lender hereunder for all purposes of an Assignment and Assumption this Agreement, notwithstanding notice to the contrary. Such register shall be available for inspection by Borrower and Sections 9.7(a) and 9.7(c) shall not apply any Lender, at any reasonable time upon reasonable prior notice to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoAgent.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentSellers shall not sell, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the its rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (Repurchase Obligations or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations delegate its duties under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein other Repurchase Document without the prior written consent of all Funding AgentsBuyer, and any attempt by a Seller to do so without such consent shall be null and void.
(b) The terms and provisions governing assignments and participations under Section 18.08(b) are set forth in the Fee Letter, and are incorporated by reference herein.
(c) Any Owner mayThe terms and provisions governing assignments and participations under Section 18.08(c) are set forth in the Fee Letter, and are incorporated by reference herein.
(d) Seller shall cooperate with Buyer, at Buyer’s sole cost and expense, in the ordinary course of its business and in accordance connection with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”i) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner and assignment of participating interests to a Participantparticipations, (i) such Owner’s rights syndications or assignments and obligations under this Agreement shall remain unchanged, (ii) any intercreditor agreement entered in connection therewith, and shall enter into such Owner 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 remain change any economic or other material term of the Repurchase Documents in a manner adverse to Seller without the consent of Seller.
(e) Buyer, acting solely responsible for this purpose as a non-fiduciary agent of Seller, shall maintain a copy of each Assignment and Acceptance and a register for the performance hereof recordation of the names and thereofaddresses 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 (iii) the Transferor, Parties shall treat each Person whose name is recorded in the Servicer, Register pursuant to the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification terms hereof as a Buyer for all purposes of this Agreement. The Transferor and the Servicer agree that each Participant Register shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable available for inspection by the Transferor or the Servicer Parties at any reasonable time and from time to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldtime upon reasonable prior notice.
(da) Any Owner may at Each Party that sells a participation or syndicates an interest 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 Participant and, with respect to each such Participant, the aggregate participated Purchase Price and applicable Price Differential, and any time pledge or grant a security other interest in any obligations under the Repurchase Documents (the “Participant Register”); provided that no Party shall have any obligation to disclose all or any portion of its rights the Participant Register (includingincluding 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 (i) that portion of the Participant Register relating to any Participant with respect to which an additional amount is requested from Seller under Article 12 or 13 shall be made available to Seller, without limitationand (ii) otherwise to the extent that such disclosure is reasonably expected to be necessary to establish that such obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, rights to payment and the participating Party shall treat each Person whose name is recorded in the Participant Register as the owner of principal and interest on its Net Investment) under the applicable participation for all purposes of this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of notwithstanding any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents notice to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretocontrary.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees Any Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (each, a each an “ParticipantAssignee”) participating interests in all that are Eligible Transferees all, or a portion any ratable part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum Dollar Equivalent amount of $5,000,000 (except such minimum amount shall not apply to an assignment or delegation by a Lender to any such sale by an Owner of participating interests to a Participantother Lender); provided, (i) such Owner’s rights however, that Borrowers and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Administrative Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Administrative Agent an Assignment and Acceptance, and (iii) the assigning Lender or Assignee has paid to Administrative Agent for Administrative 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. Notwithstanding the foregoing, no Lender shall assign or delegate all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree Lender hereunder and under the other Loan Documents to any amendment, supplement, waiver or modification direct competitor of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; Borrowers (provided, that all such amounts payable by the Transferor or the Servicer to any such Participant a financial institution which is an affiliate of a direct competitor of Borrowers shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldconstitute a direct competitor of Borrowers for this purpose).
(db) Any Owner may at any time pledge or grant From and after the date that Administrative Agent notifies the assigning Lender (with a security interest in all or any portion copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the above-referenced processing 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 have the rights and obligations of a Lender under the Loan Documents and the Intercreditor Agreement, 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 (including, without limitation, rights except with respect to payment of principal Section 10.3 hereof) and interest on its Net Investment) be released from any future obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaseran assigning Lender’s respective rights under, interest in, title to and obligations under this Agreement and the Related other Loan Documents and the Intercreditor Agreement, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrowers and the respective collateral agent or trustee 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 15 and delivery Section 16.8 of this Agreement.
(c) By executing and delivering an Assignment and Assumption Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and Sections 9.7(ainformation as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (4) such Assignee will, independently and 9.7(cwithout reliance upon Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (5) shall not apply such Assignee appoints and authorizes Administrative Agent to any take such pledge or grant actions and to exercise such powers under this Agreement, the other Loan Documents and the Intercreditor Agreement as are delegated to Administrative Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, (6) such Assignee agrees that it will perform all of a security interest described in the obligations which by the terms of this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner Agreement are required to be performed by it as a party heretoLender, and (7) such Assignee expressly assumes all rights and obligations of such assigning Lender under the Intercreditor Agreement and agrees to be bound by the terms thereof.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
Agent (c) Any Owner mayprovided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), in the ordinary course of its business assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (eacheach an "Assignee") all, a “Participant”) participating interests in all or a portion any ratable part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding any of such sale by Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except such minimum amount shall not apply to an Owner Eligible Transferee that is a Related Fund of participating interests to a ParticipantLender or an Affiliate of a Lender); provided, (i) such Owner’s rights however, that Borrowers and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Owner’s 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 substance satisfactory to Agent and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Eligible Transferee that is a Related Fund of a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment (if applicable) of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 11.3 hereof) and interest on be released from its Net Investment) obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreementthereto), and Sections 9.7(a) such assignment shall affect a novation between Borrowers and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretothe Assignee.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Purchaser may upon at least 30 days notice to the Purchaser Agent, each of the Conduit Purchasers Trustee and the Committed Purchasers and their respective assignees may Seller, assign without any prior written consentto up to five banks or other entities satisfactory to the Purchaser Agent all or a portion of its option to make future Purchases under this Agreement; provided, in whole or in parthowever, its interest in that (i) each such assignment shall be to an Eligible Assignee, (ii) the Transferred Assets and rights and obligations hereunder parties to any Permitted Transferee. To effectuate an each such assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to shall execute and deliver to the TransferorPurchaser Agent, for its acceptance and recording in the Servicer and the Administrative Agent Register, an Assignment and Assumption Agreement. Following any Acceptance in the form of Exhibit B hereto, together with a processing and recordation fee of $3,500 or such lesser amount as shall be approved by the Purchaser Agent, (iii) such assignment in accordance with shall not require the foregoing criteriaAdministrator to register as an “investment company” under the Investment Company Act and (iv) the parties to each such assignment shall have agreed to reimburse the Purchaser Agent for all fees, costs and expenses (including, without limitation, the Ownership Group Percentage reasonable fees and Ownership Group Purchase Limit out-of-pocket expenses of each Ownership Group hereunder (after giving effect to counsel for the Purchaser Agent incurred by the Purchaser Agent in connection with such assignment) will be adjusted to such extent as may be necessary to reflect , and, provided, further, that upon the effective date of such assignment (and Schedule I hereto all of the related Purchasers’ internal control conditions shall be deemed satisfied. Except with respect to assignments to banking affiliates of Wachovia Bank, National Association, no such assignment shall become effective unless the Seller shall have consented in writing thereto, which consent shall not unreasonably be amended accordingly)withheld. Notwithstanding Upon such execution, delivery and acceptance by the foregoingPurchaser Agent and the recording by the Purchaser Agent, from and after the applicable Conduit Support Documents effective date specified in each Assignment and Acceptance, which effective date shall govern be the ability date of acceptance thereof by the Purchaser Agent, unless a later date is specified therein, (i) the assignee thereunder shall be a Conduit Purchaser party hereto and, to assignthe extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations of a Purchaser hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider the Purchaser assignor thereunder shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement except with respect to actions theretofore taken (and, in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Purchaser’s rights under, interest in, title to and obligations under this Agreement and the Related Documents Agreement, such Purchaser shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreementbe a party hereto).
(b) None By executing and delivering an Assignment and Acceptance, the Purchaser assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Purchaser makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Purchaser makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Transferor, ▇▇▇▇▇ Purchasers or the Servicer may assign its rights performance or observance by the Purchasers of any of their obligations hereunder under this Agreement or any interest herein other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of such financial statements 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 will, independently and without reliance upon the prior written consent related Purchaser Agent, such assigning Purchaser or any other Purchaser 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 assigning Purchaser and such assignee confirm that such assignee is an Eligible Assignee; (vi) such assignee appoints and authorizes the Purchaser Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all of all Funding Agentsthe obligations which by the terms of this Agreement are required to be performed by it as a Purchaser and (viii) such assignee makes each of the representations and warranties contained in Section 4.2.
(c) Any Owner may, The Purchaser Agent shall maintain at its address referred to herein 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 related Purchasers and the interest in the ordinary course Securities owned by each related investor from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Purchasers, the Trustee, and the Administrator may treat each Person whose name is recorded in the Register as a Purchaser hereunder for all purposes of its business this Agreement. The Register shall be available for inspection by the Purchasers, the Trustee and in accordance with applicable law, the Administrator at any reasonable time and from time to time upon reasonable prior notice.
(d) With the prior consent of the Purchaser Agent (but without the consent of the Seller or the Administrator), each Purchaser may sell participations to one banks or more Persons who is a Permitted Transferee other entities which qualify as “institutional” accredited investors within the meaning of Rule 501(a)(1)-(3) or (each, a “Participant”7) participating interests under the Act in or to all or a portion of its rights and obligations hereunder. Notwithstanding any such sale under this Agreement (including, without limitation, all or a portion of its interest in the Securities owned by an Owner of participating interests to a Participantit); provided, however, that (i) such OwnerPurchaser’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner Purchaser shall remain solely responsible to the other parties hereto for the performance hereof and thereofof such obligations, and (iii) such participation shall not require the Transferor, Administrator to register as an “investment company” under the Servicer, Investment Company Act and (iv) the Administrative Agent, each other Owner Purchaser Agent and the Funding Agents other Purchasers shall continue to deal solely and directly with such Owner Purchaser in connection with such OwnerPurchaser’s rights and obligations under this Agreement. Each Owner agrees Notwithstanding anything herein to the contrary, each participant shall have the rights of a Purchaser (including any right to receive payment) under Sections 2.4 and 2.5; provided, however, that no participant shall be entitled to receive payment under such Sections in excess of the amount that would have been payable under such Sections by the Administrator to the Purchaser granting its participation had such participation not been granted, and no Purchaser granting a participation shall be entitled to receive payment under such Sections in an amount which exceeds the sum of (i) the amount to which such Purchaser is entitled under such Sections with respect to any portion of any interest in the Securities owned by such Purchaser which is not subject to any participation, plus (ii) the aggregate amount to which its participants are entitled under such Sections with respect to the amounts of their respective participations. With respect to any participation described in this Section 8.1, the participant’s rights as set forth in the agreement between such Owner participant and any the applicable Purchaser to agree to or to restrict such Participant in respect of such participating interest shall not restrict or condition such OwnerPurchaser’s right ability to agree to any amendment, supplementmodification, waiver or modification release of any of the terms of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled Agreement or to the benefits exercise or refrain from exercising any powers or rights which such Purchaser may have under or in respect of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant this Agreement shall be limited to the amounts which would have been payable right to consent to any of the Owner selling such participating interest had such interest not been soldmatters set forth in Section 9.1 of this Agreement.
(de) Any Owner may at Each Purchaser may, in connection with any time pledge assignment or grant participation or proposed assignment or participation pursuant to this Section 8.1, disclose to the assignee or participant or proposed assignee or participant any information relating to the Administrator or the Purchasers furnished to such Purchaser by or on behalf of the Administrator or the Purchasers; provided that such assignee or participant or proposed assignee or participant executes an agreement for the benefit of the Administrator, in form and substance satisfactory to the Administrator, agreeing to maintain the confidentiality of such information.
(f) In the event (i) a security interest Purchaser ceases to qualify as an Eligible Assignee or (ii) a Purchaser makes demand for compensation pursuant to Sections 2.4 or 2.5, the Purchaser Agent may, and, upon the direction of the Administrator and prior to the occurrence of a Termination Event, shall, in any such case, notwithstanding any provision to the contrary herein, replace such Purchaser with an Eligible Assignee approved by the Administrator (which approval shall not be unreasonably withheld) by giving three Business Days’ prior written notice to such Purchaser. In the event of the replacement of a Purchaser, such Purchaser agrees (i) to assign all or any portion of its rights and obligations hereunder to an Eligible Assignee selected by the Purchaser Agent and approved by the Administrator (which approval shall not be unreasonably withheld) upon payment to such Purchaser of all amounts due such Purchaser under the Securities, together with any accrued and unpaid interest thereon, all accrued and unpaid fees owing to such Purchaser and all other amounts owing to such Purchaser hereunder and (ii) to execute and deliver an Assignment and Acceptance and such other documents evidencing such assignment as shall be necessary or reasonably requested by the Purchaser Agent. In the event that any Purchaser ceases to qualify as an Eligible Assignee, such affected Purchaser agrees (1) to give the Purchaser Agent written notice thereof within five business days of such Purchaser ceasing to qualify as an Eligible Assignee and (2) subject to the following proviso, to reimburse the Purchaser Agent, the Trustee, the Administrator and the relevant assignee for all fees, costs and expenses (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for each of the related Purchaser Agent, the Seller, the Administrator (and such assignee) incurred by the Purchaser Agent, the Seller, the Administrator, and such assignee, respectively, in connection with any assignment made pursuant to this Section 8.1(g) by such affected Purchaser.
(g) Nothing herein shall prohibit any Purchaser from pledging or assigning as collateral any of its rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a any Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body Bank in which it is domiciled or located, accordance with applicable law and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (ecollateral assignment may be made without compliance with Section 8.1(a) or Section 8.1(b); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), and, so long as no Event of Default then exists, Borrowers, assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments (pro rata between the Tranche A Commitment and Tranche B Commitment of such Lender) and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender); provided, however, that Borrower's consent shall not be unreasonably withheld, conditioned or delayed; provided further that no Lender may make any assignment hereunder at any time to Cerberus or Ableco Finance LLC without consent of Borrowers; and provided further that that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required and payments 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 Conduit Purchasers business or loan portfolio of such Lender or (y) the assignee is an Affiliate (other than individual(s)) of a Lender. Anything contained herein to the contrary notwithstanding, Wells Fargo Foothill agrees for the benefit of Borrowers that, so lo▇▇ ▇▇ no Event of Default has occurred and is continuing, Wells Fargo Foothill shall retain more than fifty percent (50%) ▇▇ ▇he Obligations and commitment to make Advances under Section 2.1 of this Agreement, provided, however, that, the Committed Purchasers minimum retention of Obligations and their respective assignees may assign without commitment to make Advances shall not be applicable if such assignment is in connection with any prior written consentmerger, in whole consolidation, sale, transfer, or in partother disposition of all or any substantial portion of the business or loan portfolio of Wells Fargo Foothill.
(b) From and after the date that Agent ▇▇▇▇▇ies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the above-referenced processing fee, its interest in (i) the Transferred Assets and Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 a material portion of the Collateral, the Letter of Credit 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collateral, the Letter of Article VIII as though they were Owners; provided, that all such amounts payable Credit or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Subject to the last sentence of this Section 14.1(h), Agent shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Advance, as the case may be, held by such Lender. 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). Subject to the last sentence of this Section 14.1(h), 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 pledge ofaccompanied 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 an assignment or sale of any Registered Loan (and the Registered Note, if any, evidencing the same), Borrowers, Agent and the Lenders 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a register comparable to the Register on behalf of Agent.
(i) In the event that a Lender sells participations in a Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Sources: Loan and Security Agreement (Old Evangeline Downs LLC)
Assignments and Participations. (a) Each Funding AgentAny Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $1,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a Related Fund or account managed by a Lender); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Borrower and Agent a fully executed Assignment and Acceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the Transferred Assets amount of $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 assignor Lender (with a copy to Borrower) that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion its Obligations owing to such Lender, the Commitment of its such Lender, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no originating Lender shall transfer or grant any agreement between 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 Owner and 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 Guarantees (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, (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant is participating or (F) subordinate the Liens of the Collateral Agent or Agent to the Liens of any other creditor of Borrower, 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 Unmatured Default or Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 14.1(e) are solely for the Servicer to benefit of the Lender Group, and Borrower shall not have any rights as a third party beneficiary of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Advance held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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 an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register on behalf of Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (such minimum amount not to apply to an Eligible Affiliate Transferee); 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) except in the case of an assignment to an Eligible Affiliate Transferee, such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in form and substance satisfactory to Agent, each and (iii) except in the case of an assignment to an Eligible Affiliate Transferee, the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee (in each case to the extent required under subsection (a) above), in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Transaction Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Transaction Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of such fully executed Assignment and Acceptance (in each case to the extent required under subsection (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 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); PROVIDED, HOWEVER, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this SECTION 14.1(E) are solely for the Servicer to benefit of the Lender Group, and Borrower shall not have any rights as a third party beneficiary of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(or pledge ofh) all or any portion Borrower shall maintain at its address set forth in SECTION 12 a copy of each Assignment and Acceptance delivered to 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"), PROVIDED that, in the case of an assignment or delegation to an Eligible Affiliate Transferee, such Conduit Purchaser’s respective rights underEligible Affiliate Transferee shall maintain a comparable Register on behalf of Borrower. The entries in the Register shall be conclusive, interest inand Borrower, title Agent and Lenders may treat each Person whose name is recorded in the Register pursuant to and obligations under the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding notice to the contrary. Any Obligation (and the Related Documents to registered note, if any, evidencing the respective collateral agent same) may be assigned or trustee under delegated in whole or in part only by registration of such assignment on the applicable Conduit Purchaser’s Commercial Paper programRegister (and each registered note shall expressly so provide). In the event that any Lender sells participations in any Obligations, such Lender shall maintain a register on which it enters the name of all participants in such Obligations held by it (the "PARTICIPANT REGISTER"). Any Obligation (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 case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) registered note shall not apply to any such pledge or grant of a security interest described in this clause (eexpressly so provide); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender), assign and delegate to one or more assignees (each an “Assignee”) all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a fund or account managed by a Lender); provided, however, that the Loan Parties and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance substantially in the Transferred Assets form of Exhibit A-1, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender. Any assignment by a Lender to a Disqualified Lender (other than during the continuance of an Event of Default) without Administrative Borrower’s consent shall, at Administrative Borrower’s option, be null and void. Upon the request of any Lender, Agent shall make available to such Lender the list of Disqualified Lenders and such Lender may provide the list to any potential assignee for the purpose of verifying whether such Person is a Disqualified Lender. Without limiting the foregoing, Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender or (y) have any liability with respect to or arising out of disclosure of confidential information to any Disqualified Lender by any other Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower, if applicable) that it has received an executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Loan Parties or the performance or observance by the Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment (if applicable) under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Loan Parties, shall maintain at one of its offices in the ordinary course United States a copy of its business 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 Advances made by each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in accordance with applicable lawthe Register shall be conclusive absent manifest error, and the Loan Parties, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Loan Parties and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorLoan Parties, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by the 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor 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 Servicer agree other Loan Documents or any direct rights as to the other Lenders, Agent, Loan Parties, the 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 Borrower agrees that each Participant shall be entitled to the benefits of Article VIII Section 16.11 (subject to the requirements and limitations therein, including the requirements under Section 16.11(a) (it being understood that the documentation required under Section 16.11(a) shall be delivered to the participating Lender)) to the same extent as though they if it were Ownersa Lender and had acquired its interest by assignment. 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 Commitment of and Advances made by each Participant under the Loan Documents (the “Participant Register”); provided, provided that no Lender shall have any obligation to disclose all such amounts payable by or any portion of the Transferor Participant Register (including the identity of any Participant or the Servicer any information relating to a Participant’s interest in any Commitments or Advances) to any Person except to the extent that such disclosure is necessary to establish that such Commitment or Advance is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be limited 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 amounts which would contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have been payable to the Owner selling such participating interest had such interest not been soldno responsibility for maintaining a Participant Register.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Loan Parties or Loan Parties’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentLender may assign and delegate to one or more assignees (each an "ASSIGNEE") all, each or any ratable part of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents and, subject to the last sentence of this SECTION 14.1(a), may do so with the prior written consent of Borrower (which such consent shall not be unreasonably withheld or delayed); PROVIDED, HOWEVER, that Borrower may continue to deal solely and directly with 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 by Lender and the Assignee, and (ii) Lender and its Assignee have delivered to Borrower an appropriate assignment and acceptance agreement. Lender may assign all or any ratable part of all of the Obligations without any prior Borrower's consent if (i) an Event of Default shall have occurred or be continuing, (ii) substantially all of the assets of Lender are being sold or otherwise transferred, or (iii) the proposed Assignee is an Affiliate of Lender.
(b) From and after the date that Lender provides Borrower with such written consentnotice and executed assignment and acceptance agreement, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an it pursuant to such assignment hereunderand acceptance agreement, both shall have the assignee assigned and delegated rights and obligations of Lender under the assignor Loan Documents, and (includingii) Lender shall, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the that rights and obligations hereunder owned and under the other Loan Documents have been assigned and delegated by itit pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to SECTION 11.3 hereof) to and be released from its Conduit Support Providers obligations under this Agreement (and (ii) a Conduit Support Provider to assign, participate, in the case of an assignment and acceptance covering all or otherwise transfer any the remaining portion of the Transferred Assets (and the Lender's rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayImmediately upon Borrower's receipt of such fully executed assignment and acceptance agreement, in this Agreement shall be deemed to be amended to the ordinary course extent, but only to the extent, necessary to reflect the addition of its business the Assignee and in accordance with applicable law, the resulting adjustment of the rights and duties of Lender arising therefrom.
(d) Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “Participant”"PARTICIPANT") participating interests in all or a portion of its the Obligations and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a ParticipantLender hereunder and under the other Loan Documents; PROVIDED, HOWEVER, that (i) such Owner’s Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Lender shall continue to deal solely and directly with such Owner each other in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) Lender shall not transfer or grant any agreement between 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 Owner and 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 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 Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if 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 and continuation of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through Lender and the Servicer agree that each no Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor have any rights under this Agreement or the Servicer other Loan Documents or any direct rights as to Borrower, the 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 Lender.
(e) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business and such Participant shall be limited to bound by the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldconfidentiality provisions set forth in SECTION 16.10.
(df) Any Owner other provision in this Agreement notwithstanding, Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, or the grant of a enforce such pledge oR security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (MRS Fields Holding Co Inc)
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
Agent (c) Any Owner mayprovided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to a fund or account managed by a Lender or an Affiliate of a Lender), in the ordinary course of its business assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (eacheach an "Assignee") all, a “Participant”) participating interests in all or a portion any -------- part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except such minimum amount shall not apply to any such sale by an Owner Affiliate of participating interests a Lender or to a Participant, (i) such Owner’s rights fund or account managed by a Lender provided that if the minimum amount is not met Borrowers and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee); provided, however, that Borrowers and Agent may continue to deal -------- ------- solely and directly with such Owner’s 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 a fully executed Assignment and Acceptance substantially in the form of Exhibit A-1, and (iii) the assignor Lender or ----------- Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent or Administrative 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 or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower, if applicable) that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 11.3 hereof) ------------ and interest on be released from its Net Investment) obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto 124 and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Assignee.
(c) By executing and delivery of delivering an Assignment and Assumption Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and Sections 9.7(ainformation as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (4) such Assignee will, independently and 9.7(cwithout 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, (5) shall not apply such Assignee appoints and authorizes Agent to any take such pledge or grant 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 (6) such Assignee agrees that it will perform all of a security interest described in the obligations which by the terms of this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner Agreement are required to be performed by it as a party heretoLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Friede Goldman Halter Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole or in part, its interest a minimum amount of $3,000,000 (provided that no such minimum amount shall be required in the Transferred Assets case of an Assignee that is an Affiliate of a Lender), provided, however, that 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 Borrowers and Agent by such Lender and the Assignee; (ii) such Lender and its Assignee shall have delivered to Borrowers and Agent a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of Exhibit 16.1; and (iii) other than with respect to an assignment by an existing Lender to any Affiliate of such Lender, the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $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 assignor Lender that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations owing to such Lender, such Lender's Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrowers and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 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 hereunder in which such Participant is participating; (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant 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 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-off in respect of its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor and the Servicer agree that each rights of any Participant shall only be entitled derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; providedthe Advances, that all such amounts payable by the Transferor Letters of Credit or the Servicer to any such Term Loans. No Participant shall be limited have the right to participate directly in the amounts which would making of decisions by Lenders among themselves. The provisions of this Section 16.1(e) are solely for the benefit of Lender Group, and no Borrower shall have been payable to the Owner selling any rights as a third party beneficiary of any of such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, subject to Section 18.16(d), a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to any Borrower's business.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 C.F.R. ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (General Datacomm Industries Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Leapfrog Enterprises Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $5,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Companies or the performance or observance by Companies of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorCompanies, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by 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-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Companies, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Companies or Companies’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR § 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender), assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a fund or account managed by a Lender); provided, however, that Borrowers and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance substantially in the Transferred Assets form of Exhibit A-1, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower, if applicable) that it has received an executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment (if applicable) under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each At any time after the Initial Funding AgentDate, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in Eligible Assignees all or a portion of its rights and obligations hereunderunder this Agreement (including all or a portion of its Commitment, Loans or interest in the Letters of Credit); provided, that (i) each such assignment in respect of Revolving Loan Commitments or Revolving Loans shall cover the same percentage of such Lender's Revolving Loan Commitment, Revolving Loans and Letter of Credit Obligations, (ii) unless the Agent and the Borrower otherwise consent, the aggregate 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 and shall be an integral multiple of $100,000 (unless the assigning Lender's Commitment is less than $5,000,000, in which case the assignment may be in the amount of such Commitment) provided that assignments between Lenders shall have no minimum amount, (iii) the Borrower shall consent (which consent shall not be unreasonably withheld) and the Agent and the Issuing Bank shall consent to such assignment and (iv) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with processing and recordation fee of $3,000. Notwithstanding From and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder as fully as if such assignee had been named as a Lender in accordance with the terms of this Agreement and (B) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) the assignment made under such Assignment and Acceptance is made without recourse and, other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto; (ii) such sale 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 any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements delivered pursuant to Article VI 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 will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender; and (vii) such an assignee is an Eligible Assignee.
(c) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds a Term Note (a "Noteholder") (or, if such Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes a Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that such Noteholder or beneficial owner, as the case may be, (x) is not a "bank" for purposes of Section 881(c) of the Code (and is not subject to regulatory or other legal requirements as a bank in any jurisdiction, and has not been treated as a bank in any filing with or submission made to any Governmental Authority or rating agency), (y) is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and (z) is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code). Such Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes).
(d) A Term Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Term Note and the Obligation(s) evidenced thereby on the Register (and each Term Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Term Note evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Term Note evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Noteholder thereof, and thereupon a new Term Note in the same aggregate principal amount shall be issued to the designated assignee(s), and the assignor shall cancel and return to the Agent, for the account of the Borrower, the Term Note replaced by such new Term Note. No assignment of a Term Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 12.01(d).
(e) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 12.10 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 (including Noteholders) and the Commitments of, and principal amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may (and, in the case of any Loan or other obligation hereunder not evidenced by a Term Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an Owner assigning Lender, the Agent shall, if such Assign ment and Acceptance has been properly completed and is in substan tially the form of participating interests Exhibit 12.01 and if the conditions for the assignment referred to a Participantin the Assignment and Acceptance set forth in Section 12.01(a) have been met, (i) accept such Owner’s Assignment and Acceptance, (ii) record the information contained therein in the Register and the Agent's Loan Account and (iii) give prompt notice thereof to the Borrower and the other Lenders.
(g) Each Lender may sell participations to one or more banks or other entities as to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Loans owing to it, the Letter of Credit Obligations); provided, that (i) such Lenders obligations under this Agreement (including its Commitment) shall remain unchanged, (ii) such Owner Lender shall remain solely responsible to the other parties hereto for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner Agent and the Funding Agents other Lenders shall continue to deal solely and directly with such Owner Lender in connection with such Owner’s Lender's rights and obligations under this Agreement and with regard to any and all payments to be made under this Agreement. Each Owner agrees , (iv) the holder of any such participation shall not be entitled to voting rights under this Agreement; provided, however, that any the participation agreement between such Owner a Lender and any of its participants may provide that such Participant in respect Lender will obtain the approval of such participating participant prior to any amendment or waiver of any provisions of this Agreement which would (A) extend the maturity date of any Loan in which such participant holds a participation, (B) reduce the interest rate or any fees hereunder, or (C) increase the Commitment of the Lender granting the participation if such increase affects such participant, and (v) the sale of any such participations which require the Borrower to file a registration statement with the Commission or under the securities regulation laws of any state shall not restrict or condition such Owner’s right to agree to be permitted.
(h) The holder of any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant participation shall be entitled to the benefits of Article VIII Sections 2.03(f), 2.08(d), 2.09 and 2.10 as though they it were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant also a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e)Lender hereunder; provided that no participant shall be entitled to receive any payment or compensation in excess of that to which such pledge participant's selling Lender would have been entitled with respect to the amount of the participation if such Lender had not sold such participation.
(i) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" by the Borrower and provided to it by ATSC or grant the Borrower or any Subsidiary of a security interest shall release the Borrower, or by the Agent on ATSC's or the Borrower's or such Subsidiary's behalf, in connection with this Agreement or any Owner from other Loan Document, and neither it nor any of its obligations Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower, provided such source is not bound by a confidentiality agreement with the Borrower known to such Lender; provided further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Agent, any Lender or their respective Affiliates may be party, (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or substitute under any other Loan Document, and (F) to such pledgee Lender's independent auditors and other professional advisors which are required to keep such information confidential. Notwithstanding the foregoing, the Borrower authorizes each Lender to disclose to any participant or grantee for assignee and to any prospective participant or assignee, such Owner as a party heretofinancial and other information in such Lender's possession concerning ATSC or the Borrower or its Subsidiaries which has been delivered to Agent or the Lenders pursuant to this Agreement or which has been delivered to the Agent or the Lenders by the Borrower in connection with the Lenders' credit evaluation of the Borrower prior to entering into this Agreement; provided that, unless otherwise agreed by the Borrower, such participant or assignee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder.
Appears in 1 contract
Sources: Credit Agreement (Anntaylor Inc)
Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $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 the Administrative Borrower (which consent shall not be unreasonably withheld, delayed or conditioned); provided, however, that Borrowers and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the Transferred Assets 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 assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Section 16 and delivery Section 18.9 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 payment and the 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections of Article VIII as though they were Owners; providedBorrowers or their Subsidiaries, that all such amounts payable by the Transferor Collateral, or otherwise in respect of the Servicer to any such Obligations. No Participant shall be limited have the right to participate directly in the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldmaking of decisions by Lenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to Section 18.9, disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations of such Owner Lender, including without limitation (a) any pledge or assignment to a secure obligations to any of the twelve Federal Reserve Bank, the U.S. Treasury, Banks organized under §4 of the Federal Deposit Insurance Corporation Reserve Act, 12 USC §341 and (b) with respect to any Lender that is a Fund, to any lender or the central bank of any nation trustee for, or any other political body in which it is domiciled or located, and any Conduit Purchaser may assign all representative of, holders of obligations owed or the grant of a securities issued by such Fund as security interest in (for such obligations or pledge of) all securities or any portion of, institutional custodian for such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent Fund or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any for such pledge or grant of a security interest described in this clause (e)lender; provided that no such pledge or grant of a security interest shall release any Owner such Lender from any of its obligations hereunder, provide any voting rights hereunder or to the secured party thereof, substitute any such pledgee or grantee secured party for such Owner Lender as a party heretohereto or affect any rights or obligations of Borrowers or Agent hereunder.
(h) If any assignee Lender is an Affiliate of any Borrower, then any such assignee 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 other modifications to any of the Loan Documents or for purposes of making requests to Agent pursuant to Section 9, and the determination of the Required Lenders shall for all purposes of this Agreement and the other Loan Documents be made without regard to such assignee Lender’s interest in any of the Obligations. If any Lender sells a participating interest in any of the Obligations to a Participant, and such Participant is a Borrower or an Affiliate of a Borrower, then such transferor Lender shall promptly notify Agent of the sale of such 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 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 Obligations to the extent of such participation.
Appears in 1 contract
Assignments and Participations. (a) Each Funding With the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and, in each case, consent shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of the Conduit Purchasers and the Committed Purchasers and their respective assignees a Lender, any Lender may assign without any prior written consentand delegate to one or more assignees (each, in whole an “Assignee” (provided, however, that no Loan Party or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit Affiliate of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto a Loan Party shall be deemed permitted to be amended accordinglybecome an Assignee except pursuant to Section 13.1(i). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement of the Obligations and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any such sale by Lender to any other Lender or an Owner Affiliate of participating interests to any Lender or (y) a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agentgroup of new Lenders, each of which is an Affiliate of each other Owner 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 $1,000,000); provided, however, that Borrower and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, 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 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. 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 under this Agreement. Each Owner agrees that any agreement between hereunder have been assigned to it pursuant to such Owner Assignment and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendmentAcceptance, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 10.3) and interest on its Net Investment) be released from any future obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaseran assigning Lender’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee termination of this Agreement, including such assigning Lender’s obligations under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Section 15 and delivery of Section 17.9(a). By executing and delivering an Assignment and Assumption AgreementAcceptance, the assigning Lender thereunder and Sections 9.7(athe 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 9.7(c) shall not apply 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 pledge assigning Lender makes no representation or grant warranty and assumes no responsibility with respect to the financial condition of a security interest described in this clause (e); provided that no such pledge Borrower or grant the performance or observance by Borrower of a security interest shall release any Owner from any of its obligations hereunder under this Agreement or substitute any other Loan Document furnished pursuant hereto, (iii) such pledgee 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 grantee for any other Lender, and based on such Owner 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 party heretoLender. 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 Lenders arising therefrom.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees Any Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (eacheach an "Assignee") that are Eligible Transferees all, a “Participant”) participating interests in all or a portion any ratable part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding any of such sale by an Owner Lender hereunder and under the other Loan Documents, in a minimum amount of participating interests to a Participant$1,000,000; provided, (i) such Owner’s rights however, that Borrowers and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect the interest so assigned to an Assignee until (i) written notice of such participating interest shall not restrict or condition assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor Lender and the Servicer agree that each Participant shall be entitled Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance, and (iii) the benefits assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of Article VIII as though they were Owners; provided$5,000. In addition, that any Lender may, without the consent of Agent or Borrower, pledge such Lender's Term Loan and all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related other Loan Documents (including any note executed by any Borrower in connection with this Agreement) to secure obligations its lenders in support of borrowings made by such Owner Lender from such lenders. Anything contained herein to a Federal Reserve Bankthe contrary notwithstanding, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank payment of any nation 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 political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant disposition of a security interest in (or pledge of) all or any substantial portion ofof the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 Conduit Purchaser’s respective Assignment and Acceptance, shall have the rights underand obligations of a Lender under the Loan Documents, interest inand (ii) the assignor Lender shall, title 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 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 Related Documents 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 respective collateral agent or trustee 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 17.8 of this Agreement.
(c) By executing and delivering an Assignment and Assumption Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and Sections 9.7(ainformation as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (4) such Assignee will, independently and 9.7(cwithout 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, (5) shall not apply such Assignee appoints and authorizes Agent to any take such pledge or grant 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 (6) such Assignee agrees that it will perform all of a security interest described in the obligations which by the terms of this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner Agreement are required to be performed by it as a party heretoLender.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
Agent (c) Any Owner mayprovided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), in the ordinary course of its business assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (eacheach an "Assignee") all, a “Participant”) participating interests in all or a portion any part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except such minimum amount shall not apply to any such sale by an Owner Affiliate of participating interests a Lender or to a ParticipantRelated Fund or account managed by a Lender); provided, (i) such Owner’s rights however, that Borrower and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Owner’s 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 a fully executed Assignment and Acceptance, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 assignor Lender (with a copy to Borrower) that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 11.3 hereof) and interest on be released from its Net Investment) obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Assignee.
(c) By executing and delivery of delivering an Assignment and Assumption AgreementAcceptance, the assigning Lender thereunder and Sections 9.7(athe Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) other than as provided in such Assignment and 9.7(c) shall not apply 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, (2) such pledge assigning Lender makes no representation or grant warranty 106 and assumes no responsibility with respect to the financial condition of a security interest described in this clause (e); provided that no such pledge Borrower or grant the performance or observance by Borrower of a security interest shall release any Owner from any of its obligations hereunder under this Agreement or substitute any other Loan Document furnished pursuant hereto, (3) such pledgee 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, (4) such Assignee will, independently and without reliance upon Agent, such assigning Lender or grantee for any other Lender, and based on such Owner 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, (5) 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 (6) 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 party heretoLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except that such minimum amount shall not apply in connection with any assignment and delegation by a Lender (x) to any Affiliate (other than individuals) of, or any fund, money market account, investment account or other account managed by, a pre-existing Lender under this Agreement or (y) of the entire Obligations, Commitments and other rights and obligations of such Lender hereunder and under the other Loan Documents); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the Transferred Assets amount of $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 assignor Lender that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Southwest Royalties Holdings Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) 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 their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business. Prior to making any such disclosure of any such documents or information, the Lender shall cause such prospective assignee or participant to enter into a confidentiality agreement containing confidentiality provision substantially similar to those contained in Section 16.17(d).
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayAgent, in the ordinary course of its business assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee Eligible Transferees (eacheach an "Assignee") all, a “Participant”) participating interests in all or a portion any ratable part, of its the Obligations, the Commitments, and the other rights and obligations hereunder. Notwithstanding any of such sale by an Owner Lender hereunder and under the other Loan Documents, in a minimum Commitment amount (if such assignment is a partial assignment) of participating interests to a Participant$5,000,000; provided, (i) such Owner’s rights however, that Borrower and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Owner’s 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 a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of Exhibit 15.1; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $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. 80 (b) From and after the date that Agent notifies the assignor Lender that it has received a fully executed Assignment and Acceptance and payment of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights to payment of principal and interest on be released from its Net Investment) obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as be a party heretohereto and thereto).
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Administrative Agent, assign and delegate to one or more Eligible Transferees (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole or a minimum amount of $5,000,000; PROVIDED, HOWEVER, that Borrower and Administrative Agent may continue to deal solely and directly with such Lender in partconnection 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 Administrative Agent by such Lender and the Assignee; (ii) such Lender and its interest Assignee shall have delivered to Borrower and Administrative Agent a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the Transferred Assets form of EXHIBIT A-1; and (iii) the assignor Lender or Assignee has paid to Administrative Agent for Administrative Agent's sole and separate account a processing fee in the amount of $2,500. Anything contained herein to the contrary notwithstanding, the consent of Administrative 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 Administrative Agent notifies the assignor Lender that it has received a fully executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) such Assignee will, independently and without reliance upon Administrative Agent, such assigning Lender, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (5) such Assignee appoints and authorizes Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under this Agreement as are delegated to Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender PRO TANTO.
(e) Any Lender may at any time time, with the written consent of Administrative Agent, which consent shall not be unreasonably withheld, sell to one or more Persons who is (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; PROVIDED, HOWEVER, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Borrower and Administrative Agent, each other Owner and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 a material portion of the Collateral (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 hereunder in which such Participant is participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such participating interest Participant is participating; and (v) all amounts payable by Borrower hereunder shall be determined as if such Originating Lender had not restrict sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or condition such Owner’s right to agree to any amendmentshall have been declared or shall have become due and payable upon the occurrence of an Event of Default, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the benefits same extent as if the amount of Article VIII its participating interest were owing directly to it as though they were Ownersa Lender under this Agreement; providedPROVIDED, HOWEVER, that all no Participant may exercise any such amounts payable right of setoff without the notice to and consent of Administrative Agent. The rights of any Participant shall only be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Administrative Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this SECTION 15.1(e) are solely for the Servicer to benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, Bank in accordance with Regulation A of the FRB or U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or locatedTreasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
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Assignments and Participations. Subject to the Senior Facilities Documentation Principles, substantially the same as and limited to those set forth in the Existing Credit Agreement, which provides that the Lenders will be permitted to assign (a) Each Funding Agent, each loans under the Term Facility with the consent of the Conduit Purchasers Company (not to be unreasonably withheld or delayed) and (b) loans and commitments under the Revolving Facility with the consent of the Company (not to be unreasonably withheld), the Swingline Lender and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest Issuing Bank; provided that (i) no consent of the Company shall be required in the Transferred Assets case of (A) the Term Facility only, if such assignment is made to another Lender or an affiliate or approved fund of a Lender, (B) the Revolving Facility only, if such assignment is made to another Revolving Lender or to an affiliate of a revolving Lender of similar creditworthiness, or (C) after the occurrence and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both during the assignee and the assignor continuance of a payment or bankruptcy (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver with respect to the Transferor, Company) event of default and (ii) the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto Company shall be deemed to be amended accordingly)have consented to an assignment of Term Loans if the Company does not object within 10 business days of a written request therefor. Notwithstanding All assignments will require the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion consent of the Transferred Assets (and the rights and obligations hereunder owned by it) Agent, not to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, be unreasonably withheld or otherwise transfer any portion delayed; provided that no consent of the Transferred Assets (and Agent shall be required, in the rights and obligations hereunder) owned by case of the Term Facility only, if such Conduit Support Providerassignment is made to another Lender or an affiliate or approved fund of a Lender. The Transferor and the Servicer hereby agree and consent Each assignment will be in an amount of an integral multiple of $1,000,000 with respect to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to Term Facility and obligations under this Agreement and the Related Documents $5,000,000 with respect to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper programRevolving Facility, or, in each case without the execution and delivery case, if less, all of an Assignment and Assumption Agreement.
(b) None of the Transferor, such ▇▇▇▇▇ or ▇▇’s remaining loans and commitments of the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, applicable class. An assignment fee in the ordinary course amount of its business $3,500 shall be paid by the respective assignor or assignee to the Agent. The Lenders will be permitted to sell participations in Term Loans and in accordance with applicable lawloans and commitments under the Revolving Facility without consent being required, at any time sell subject to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion customary limitations. Voting rights of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant participants shall be limited to matters in respect of (a) increases in commitments participated to such participants, (b) reductions of principal, interest or fees, (c) extensions of final maturity or the amounts which would have been payable to the Owner selling such participating due date of any amortization, interest had such interest not been sold.
or fee payment, (d) Any Owner may at any time pledge or grant a security interest in releases of the guarantees of all or substantially all Guarantors or all or substantially all of the Collateral and (e) changes in voting thresholds. The Operative Documents shall provide that so long as no default or event of default is continuing, Term Loans may be purchased by and assigned to Holdings or any portion of its rights subsidiaries on (including, without limitation, rights a) a non-pro rata basis through open market purchases and/or (b) on a pro rata basis through Dutch auctions open to payment of principal and interest on its Net Investment) under this Agreement and all Lenders in accordance with customary procedures as set forth in the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Existing Credit Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no any such pledge Term Loans shall be automatically and permanently cancelled immediately upon acquisition thereof by Holdings or grant of a security interest shall release any Owner from any of its obligations hereunder subsidiaries and no proceeds of the Revolving Facility may be used to consummate such assignment. The Operative Documents will contain customary provisions allowing the Company to replace a Lender or substitute any such pledgee terminate the commitment of a Lender and prepay that Lender’s outstanding Loans in full in connection with amendments and waivers requiring the consent of all Lenders or grantee for such Owner of all Lenders directly adversely affected thereby (so long as a party heretothe Required Lenders have approved the amendment or waiver), increased costs, taxes, etc. and defaulting lenders.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except that such minimum amount shall not apply in connection with any assignment and delegation by a Lender (x) to any Affiliate (other than individuals) of, or any fund, money market account, investment account or other account managed by, a pre-existing Lender under this Agreement or (y) of the entire Obligations, Commitments and other rights and obligations of such Lender hereunder and under the other Loan Documents); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the Transferred Assets amount of $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 assignor Lender that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) and no notice to Agent shall be required in connection with any assignment and delegation by a Lender, to an Affiliate of a Lender, or fund or account managed by a Lender, assign and delegate to one or more assignees (each an "ASSIGNEE") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Post-Petition Loan Documents, in a minimum amount of $5,000,000; except that such minimum amount shall not apply to an Affiliate of a Lender or a fund 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 Assignment and Acceptance in form and substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Post- Petition Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder and under the other Post-Petition Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to SECTION 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Post-Petition Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Post-Petition Loan Document furnished pursuant hereto, (2) 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 Borrower of any of its business obligations under this Agreement or any other Post-Petition Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “Participant”"PARTICIPANT") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "ORIGINATING LENDER") hereunder and under the other Post-Petition Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); PROVIDED, HOWEVER, that (i) such Owner’s the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Post-Petition 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 Post-Petition Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Post-Petition Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and amendment to, or consent or waiver with respect to this Agreement or of any other Post-Petition 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 a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Post-Petition Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Post-Petition Loan Documents or any direct rights as to the benefits other Lenders, Agent, the Loan Parties, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this SECTION 14.1(E) are solely for the Servicer to benefit of Lender Group, and none of the Loan Parties shall have any rights as a third party beneficiary of any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to the Loan Parties or their businesses.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations (i) in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law or (or pledge ofii) all or in favor of any portion ofother Person, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner secured party as a party hereto.
(h) The Agent, acting for this purpose as an agent of the Loan Parties shall maintain at the address set forth in SECTION 12 a copy of each Assignment and Acceptance delivered to 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"). The entries in the Register shall be conclusive, and Borrowers, Agent and 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 of the contrary In the event that any Lender sells participations in any Obligations, such Lender shall maintain a register on which it enters the name of all participants in such Obligations held by it (the "PARTICIPANT Register"). Any Obligation (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 Obligations (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(i) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, payment of the processing and recordation fee and any required written consent to such assignment, Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other DIP Loan Documents, in whole a minimum amount of $5,000,000 (except that such minimum amount shall not apply in connection with any assignment and delegation by a Lender (x) to any Affiliate (other than individuals) of, or any fund, money market account, investment account or other account managed by, a pre-existing Lender under this Agreement or (y) of the entire Obligations, Commitments and other rights and obligations of such Lender hereunder and under the other DIP Loan Documents); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the Transferred Assets amount of $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 assignor Lender that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the DIP Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder and under the other DIP Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other DIP Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other DIP Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other DIP Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. 95 103
(d) Immediately upon each Assignee's making its processing fee payment under the 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "originating Lender") hereunder and under the other DIP Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other DIP Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 DIP Loan Document, except to the extent such Owner and amendment to, or consent or waiver with respect to this Agreement or of any other DIP 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 a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the DIP Loan Documents) supporting the Obligations hereunder in which such Participant is participating; (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender; or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
Agent (c) Any Owner mayprovided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), in the ordinary course and, so long as no Event of its business Default then exists, Borrowers, assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (eacheach an "Assignee") all, a “Participant”or any ratable part of all, of the Obligations, the Commitments (pro rata between the Tranche A Commitment and Tranche B Commitment of such Lender) participating interests in all or a portion of its and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender); provided, however, that Borrower's consent shall not be unreasonably withheld, conditioned or delayed; provided further that no Lender may make any such sale by an Owner assignment hereunder at any time to Cerberus or Ableco Finance LLC without consent of participating interests to a Participant, (i) such Owner’s rights Borrowers; and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof provided further that that Borrowers and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Owner’s 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 substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required and payments 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 (other than individual(s)) of a Lender. Anything contained herein to the contrary notwithstanding, ▇▇▇▇▇ Fargo Foothill agrees for the benefit of Borrowers that, so long as no Event of Default has occurred and is continuing, ▇▇▇▇▇ Fargo Foothill shall retain more than fifty percent (50%) of the Obligations and commitment to make Advances under Section 2.1 of this Agreement, provided, however, that, the minimum retention of Obligations and commitment to make Advances 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 ▇▇▇▇▇ Fargo Foothill.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 11.3 hereof) and interest on be released from its Net Investment) obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Assignee.
(c) By executing and delivery of delivering an Assignment and Assumption Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and Sections 9.7(ainformation as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (4) such Assignee will, independently and 9.7(cwithout 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, (5) shall not apply such Assignee appoints and authorizes Agent to any take such pledge or grant 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 (6) such Assignee agrees that it will perform all of a security interest described in the obligations which by the terms of this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner Agreement are required to be performed by it as a party heretoLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming Corp)
Assignments and Participations. The Lenders will be permitted to assign loans under the First Lien Facility (other than to (a) Each Funding Agenta natural person, each (b) subject to the following paragraph, the Borrower and its affiliates or (c) to the extent they have been identified to the relevant Lender in writing prior to such assignment, Disqualified Institutions (as defined in the Commitment Letter) with the consent of the Conduit Purchasers and Borrower (such consent not to be unreasonably withheld or delayed); provided that such consent of the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor Borrower (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(sx) and its Funding Agent) will shall not be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignmenti) will be adjusted to such extent as may be necessary to reflect if such assignment is made to another Lender under the First Lien Facility or an affiliate or approved fund of any such Lender or (ii) after the occurrence and Schedule I hereto during the continuance of an event of default and (y) shall be deemed to have been given if the Borrower has not responded within five business days of a request for such consent. All assignments will require the consent of the Agent, not to be amended accordingly)unreasonably withheld or delayed. Notwithstanding Each assignment will be in an amount of an integral multiple of $1,000,000 or, if less, all of such Lender’s remaining loans. Assignments will be by novation. An assignment fee in the foregoing, amount of $3,500 shall be paid by the applicable Conduit Support Documents respective assignor or assignee to the Agent. The Agent shall govern not be responsible for monitoring compliance with the ability Disqualified Lender list and shall have no liability for non-compliance by any Lender. Assignments of loans under the First Lien Facility to the Borrower shall be permitted subject to the following limitations: (i) a Conduit Purchaser Holdings, the Borrower and its subsidiaries may not purchase loans under the First Lien Facility at any time while they or any of their respective directors or officers is aware of any material non-public information with respect to assignthe business of Holdings, participate, the Borrower or otherwise transfer any portion of their subsidiaries at the Transferred Assets (and the rights and obligations hereunder owned by it) time of such purchase that has not been disclosed to its Conduit Support Providers and Lenders generally; (ii) a Conduit Support Provider any offer to assignpurchase or take by assignment any loans under the First Lien Facility by Holdings, participate, the Borrower or otherwise transfer any portion its subsidiaries shall have been made to all Lenders pro rata (with buyback mechanics to be agreed); (iii) no default or event of default has occurred and is continuing; and (iv) the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Providerloans purchased are immediately cancelled. The Transferor and the Servicer hereby agree and consent Lenders will be permitted to sell participations in loans (other than to a natural person or to the complete assignment by the applicable Owners Borrower and its affiliates) without restriction. Voting rights of all participants shall be limited to matters in respect of (a) increases in commitments of such participant, (b) reductions or forgiveness of principal, interest or fees payable to such participant, (c) extensions of final maturity or scheduled amortization of, or the grant date for payment of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferorfees on, the Servicer, the Administrative Agent, each other Owner loans or commitments in which such participant participates and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in releases of all or any portion substantially all of its rights (including, without limitation, rights to payment the value of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all ofGuarantees, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and substantially all of the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoCollateral.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Agent, each Neither the Borrower nor any of the Conduit Purchasers and the Committed Purchasers and their respective assignees Subsidiary Guarantors may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein under the Note without the prior written consent of all Funding Agentsthe Bank.
(b) The Bank may assign the Loan and the Note, with the consent, so long as no Event of Default shall have occurred and be continuing, of the Borrower (such consent not to be unreasonably withheld or delayed); provided that
(i) except to the extent the Bank and the Borrower shall otherwise consent, any such partial assignment (other than to a Lender under the Existing Credit Agreement) shall be in an amount at least equal to $5,000,000;
(ii) each such assignment by the Bank of the Loan or the Note shall be made in such manner so that the same portion of the Loan and Commitment is assigned to the respective assignee; and
(iii) upon each such assignment, the assignor and assignee shall deliver to the Borrower an Assignment and Acceptance in the form of Exhibit E hereto. Upon execution and delivery by the assignor and the assignee to the Borrower of such Assignment and Acceptance, and upon consent thereto by the Borrower to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise consented to by the Borrower), the obligations, rights and benefits of the Bank hereunder holding the Loan (or portions thereof) assigned to it and specified in such Assignment and Acceptance.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time The Bank may sell or agree to sell to one or more other Persons who is a Permitted Transferee (each, a “Participant”) participating interests participation in all or any part of the Loan held by it (such purchaser of a participation a "Participant"), but a Participant shall not have any other rights or benefits under this Agreement or the Note and any Affiliate Subordination Agreement (the Participant's rights against the Bank in respect of such participation to be those set forth in the agreements executed by the Bank in favor of the Participant). All amounts payable by the Borrower to the Bank under Section 5 hereof and Section 11.03 hereof in respect of the Loan held by it and the Commitment shall be determined as if the Bank had not sold or agreed to sell any participations in the Loan and Commitment, and as if the Bank were funding such Loan in the same way that it is funding the portion of its rights such Loan and obligations hereunderCommitment in which no participations have been sold. Notwithstanding In no event shall the Bank agree with the Participant to take or refrain from taking any such sale by an Owner action hereunder or under the Note and any Affiliate Subordination Agreement except that the Bank may agree with the Participant that it will not, without the consent of participating interests to a the Participant, agree to (i) such Owner’s rights and obligations under this Agreement shall remain unchangedextend the date fixed for the payment of principal of or interest on the Loan or any portion of any fee hereunder payable to the Participant, (ii) reduce the amount of any such Owner shall remain solely responsible for the performance hereof and thereofpayment of principal, and (iii) reduce the Transferorrate at which interest is payable thereon, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that or any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been fee hereunder payable to the Owner selling such participating interest had Participant, to a level below the rate at which the Participant is entitled to receive such interest not been soldor fee or (iv) alter the rights or obligations of the Borrower to prepay the Loan.
(d) Any Owner In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, the Bank may at (without notice to or the consent of the Borrower and without payment of any time fee)
(i) assign and pledge all or grant a any portion of the Loan and the Note to any Federal Reserve Bank as collateral security interest in pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents Loan and the Note to secure an affiliate. No such assignment shall release the Bank from its obligations of such Owner to a Federal Reserve Bankhereunder.
(e) The Bank may furnish any information concerning the Borrower, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all Subsidiary Guarantors or any portion ofof their respective Subsidiaries in the possession of the Bank from time to time to assignees and participants (including prospective assignees and participants), such Conduit Purchaser’s respective rights undersubject, interest inhowever, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery provisions of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoSection 11.12 hereof.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (provided that such minimum amount shall not apply to any assignment and delegation by a Lender to an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender, provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes 95 97 no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent extent such amendment to, or trustee under 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 Conduit Purchaser’s Commercial Paper programto the Obligations hereunder in which such Participant is participating, (C) release all or a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations the Loan Documents) supporting the Obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.in which such
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereof, and of such obligations; (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents; (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Sec. 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentWith the written consent of Parent, Lender may assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part -------- of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents; provided, however, that Parent and -------- ------- its Subsidiaries may assign without continue to deal solely and directly with 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 Parent and Borrower by Lender and the Assignee, and (ii) Lender and its Assignee have delivered to Parent and Borrower an appropriate assignment and acceptance agreement; provided, further, however, that the consent of Parent and Borrower to any prior -------- ------- ------- assignment shall not be required if (a) an Event of Default has occurred and is continuing, or (ii) the proposed assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion or the business or loan portfolio of Lender.
(b) From and after the date that Lender provides Parent and Borrower with such written consentnotice and executed assignment and acceptance agreement, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an it pursuant to such assignment hereunderand acceptance agreement, both shall have the assignee assigned and delegated rights and obligations of Lender under the assignor Loan Documents, and (includingii) Lender shall, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the that rights and obligations hereunder owned and under the other Loan Documents have been assigned and delegated by itit pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) to and be released from its Conduit Support Providers obligations under this ------------ Agreement (and (ii) a Conduit Support Provider to assign, participate, in the case of an assignment and acceptance agreement covering all or otherwise transfer any the remaining portion of the Transferred Assets (and the Lender's rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Parent and Borrower, on the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under one hand, and the applicable Conduit Purchaser’s Commercial Paper programAssignee, in each case without on the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agentsother hand.
(c) Any Owner mayImmediately upon Parent's receipt of such fully executed assignment and acceptance agreement, in this Agreement shall be deemed to be amended to the ordinary course extent, but only to the extent, necessary to reflect the addition of its business the Assignee and in accordance with applicable law, the resulting adjustment of the rights and duties of Lender arising therefrom.
(d) Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion the Obligations and the other rights ----------- and interests of its rights Lender hereunder and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participantunder the other Loan Documents; provided, -------- however, that (i) such Owner’s Lender shall remain the "Lender" for all purposes of this ------- Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorParent, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Lender shall continue to deal solely and directly with such Owner each other in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) Lender shall not transfer or grant any agreement between 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 Owner and 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 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 Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through Lender and the Servicer agree that each no Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor have any rights under this Agreement or the Servicer other Loan Documents or any direct rights as to any such Parent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall be limited have the right to participate directly in the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldmaking of decisions by Lender.
(de) Subject to the provisions of Section 16.10, in connection with ------------- any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries or the businesses of Parent and its Subsidiaries.
(f) Any Owner other provision in this Agreement notwithstanding, Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR (S)203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $5,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Mercator Software Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole or a minimum amount of $5,000,000; PROVIDED, HOWEVER, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the Transferred Assets form of EXHIBIT A-1; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $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 assignor Lender that it has received a fully executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee executing and delivering the Assignment and Acceptance and making its processing fee payment under the 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 and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such 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 Persons who is (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; PROVIDED, HOWEVER, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 a material portion of the Collateral (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 hereunder in which such Participant is participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such participating interest Participant is participating; and (v) all amounts payable by Borrower hereunder shall be determined as if such Originating Lender had not restrict sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or condition such Owner’s right to agree to any amendmentshall have been declared or shall have become due and payable upon the occurrence of an Event of Default, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the benefits same extent as if the amount of Article VIII its participating interest were owing directly to it as though they were Ownersa Lender under this Agreement; providedPROVIDED, HOWEVER, that all no Participant may exercise any such amounts payable right of setoff without the notice to and consent of Agent. The rights of any Participant shall only be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this SECTION 15.1(e) are solely for the Servicer to benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, Bank in accordance with Regulation A of the FRB or U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or locatedTreasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (provided that such minimum amount shall not apply to any assignment and delegation by a Lender to an Affiliate of a Lender); provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the Conduit Purchasers and above-referenced processing fee, (i) the Committed Purchasers and their respective assignees may assign without any prior written consentAssignee thereunder shall be a party hereto and, in whole or in part, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, (E) change the amount or due dates of scheduled principal repayments, prepayments or premiums, 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 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender or to a Related Fund); provided, however, that 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 substance reasonably satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or (y) the assignee is an Affiliate (other than individual(s)) of a Lender or a Related Fund.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in partas applicable, its interest in (i) the Transferred Assets and Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 16 and delivery Section 17.8 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(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 Borrowers or the performance or observance by Borrowers 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.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (1) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (2) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (3) 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, (4) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or (5) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor and the Servicer agree that each rights of any Participant shall only be entitled 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 benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or United States Treasury Regulation 31 C.F.R. Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Subject to the last sentence of this Section 14.1(h), Agent shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Advance, as the case may be, held by such Lender. 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). Subject to the last sentence of this Section 14.1(h), 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 an assignment or sale of any Registered Loan (and the Registered Note, if any, evidencing the same), Borrowers, Agent and the Lenders 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 an assignment or delegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a register comparable to the Register on behalf of Agent.
(i) In the event that a Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(j) Notwithstanding any other provision hereof, the Lenders hereby consent to any Lender's pledge (a "Pledge") of its Net Investmentinterest in the Obligations, the Commitment, and the other rights and interests of that Lender (a "Loan Pledgor") to any Eligible Transferee that has extended a credit facility to such Loan Pledgor (a "Loan Pledgee"), on the terms and conditions set forth in this paragraph. Upon written notice by any Loan Pledgor to Agent that the Pledge has been effected, Agent agrees to acknowledge receipt of such notice and thereafter agrees: (a) to use its best efforts to give Loan Pledgee written notice of any default by Loan Pledgor under this Agreement and any amendment, modification, waiver or termination of Loan Pledgor's rights under this Agreement; provided, however, Agent shall not have any liability to Loan Pledgee if Agent fails to give such notice; (b) that Agent shall deliver, at the Related Documents expense of Loan Pledgor, to secure Loan Pledgee such information available to the Lenders hereunder as Loan Pledgee shall reasonably request; and (c) that, upon written notice (a "Redirection Notice") to Agent by Loan Pledgee that Loan Pledgor is in default, beyond applicable cure periods, under Loan Pledgor's obligations to Loan Pledgee pursuant to the applicable credit agreement between Loan Pledgor and Loan Pledgee (which notice need not be joined in or confirmed by all Lenders), and until such Redirection Notice is withdrawn or rescinded by Loan Pledgee, any payments to which Loan Pledgor is entitled from time to time pursuant to this Agreement, or any other Loan Document, shall be paid or directed to Loan Pledgee. The relevant Loan Pledgor hereby unconditionally and absolutely releases Agent and the other Lenders from any liability to the such Loan Pledgor on account of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation Agent's or any Lender's compliance with any Redirection Notice reasonably believed by Agent or the central bank of any nation or other political body Lenders to have been delivered in which it is domiciled or locatedgood faith. Loan Pledgee shall be permitted fully to exercise its rights and remedies against the relevant Loan 104 Pledgor, and realize on any Conduit Purchaser may assign and all ofcollateral granted by such Loan Pledgor to Loan Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), or in accordance with applicable law and the grant provisions of a security interest in (or pledge of) all or any portion ofthis Agreement. In such event, such Conduit Purchaser’s respective rights underAgent and the Lenders shall recognize Loan Pledgee, interest inand its successors and assigns that are Eligible Transferees, title as the successor to the applicable Loan Pledgor's rights, remedies and obligations under this Agreement and the Related Documents to Loan Documents. The rights of Loan Pledgee under this paragraph shall remain effective unless and until such Loan Pledgee shall have notified Agent in writing that its interest in the respective collateral agent Obligations, the Commitment, and the other rights and interests of the relevant Loan Pledgor has terminated.
(k) It is contemplated that those Persons which are Lenders hereunder on the Closing Date will assign and transfer all or trustee under a portion of their Commitments and the applicable Conduit Purchaser’s Commercial Paper programObligations related thereto effective as of the date established by Agent, after consultation with such Lenders, as the date for closing the general syndication ("General Syndication Closing Date"). Notwithstanding the foregoing provisions of this Section 14.1, assignments effective on the General Syndication Closing Date (i) do not require the consent of Administrative Borrower or payment of a processing fee, (ii) may not be in each case without a ratable amount of the Obligations and Commitments of such Lenders, and (iii) shall be accomplished by the execution by all such Lenders as of such date and delivery all such transferees of a single agreement provided by Agent in substantially the form of an Assignment and Assumption AgreementAcceptance. Such agreement shall provide that all Commitments shall, and Sections 9.7(a) and 9.7(c) shall not apply to any as of the effective date of such pledge or grant agreement, be as set forth on Annex I thereto, which Annex shall, as of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party the General Syndication Closing Date, amend Schedule C-2 hereto.
Appears in 1 contract
Sources: Loan and Security Agreement (U Haul International Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $10,000,000.00; 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000.00. 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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower’s business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender), assign and delegate to one or more assignees (each an “Assignee”) all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a fund or account managed by a Lender); provided, however, that the Loan Parties and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance substantially in the Transferred Assets form of Exhibit A-1, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower, if applicable) that it has received an executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Loan Parties or the performance or observance by the Loan Parties of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment (if applicable) under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorLoan Parties, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by the 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Loan Parties, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Loan Parties or Loan Parties’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentNo Lender may sell, each assign, transfer, pledge, mortgage or hypothecate its rights or obligations (including, without limitation, its Commitment) under this Agreement or any of the Conduit Purchasers other Loan Documents except as expressly permitted under this Section 9.7. Each Lender shall have the right to assign or transfer its rights and obligations arising under this Agreement and any of its rights and security hereunder and under the Committed Purchasers and their respective assignees may assign without any prior written consentother Loan Documents, in whole or in part, its interest subject to the receipt of the prior written consent of the Administrative Agent, provided that Administrative Agent shall be required to remain the administrative agent under the Loan provided that no Event of Default has occurred and is continuing and Administrative Agent has not elected to discontinue administering real estate loans in the Transferred Assets State of California (subject to the Required Lenders’ right to remove Administrative Agent if Administrative Agent is grossly negligent or commits willful misconduct). In addition to obtaining the consent of the Administrative Agent, the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required to the extent any Lender shall assign or transfer its rights and obligations arising under this Agreement and any of its rights and security hereunder and under the other Loan Documents, in whole or in part, unless an Event of Default has occurred and is continuing at the time of such assignment. If Borrower’s consent to an assignment or transfer is required under this Section 9.7 and Borrower fails to provide written notice of disapproval of such assignment or transfer within five (5) Business Days after receipt of such notice, then Administrative Agent shall submit a second written request for approval by first-class certified or registered United States mail, postage prepaid, return receipt requested, by nationally-recognized overnight courier, or by personal delivery, in all cases with charges prepaid, which second request shall contain (i) the following notice in bold-face capital letters in 14-point font or larger: “RESPONSE REQUIRED WITHIN TWO (2) BUSINESS DAYS OF RECEIPT. FAILURE TO DISAPPROVE THE SAME SHALL BE DEEMED APPROVAL IF NOT DISAPPROVED IN WRITING” and (ii) attach the initial request for approval. In the event that Borrower fails to provide written notice of disapproval within two (2) Business Days of receipt of such second notice, Borrower’s approval and consent shall be deemed to have been granted. With respect to any such assignment permitted under the terms of this Section 9.7, such assignment shall be further subject to the following conditions, that (i) the parties to each such assignment shall execute and exchange an assignment and assumption agreement (“Assignment and Assumption”) in substantially the form of Exhibit E attached hereto, (ii) each such assignment or transfer shall be of all of such Lender’s rights and obligations to the extent of the Percentage so assigned, (iii) each assignment or transfer is made upon at least fifteen (15) days prior written notice to Administrative Agent, (iv) each assignment or transfer is consented to by Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed if the proposed assignee or transferee is an Eligible Assignee and has provided to Administrative Agent such documents and/or information as Administrative Agent shall reasonably request in connection with such assignment or transfer. Upon such execution and exchange and if such Assignment and Assumption Agreement has been properly completed and consented to if required herein upon the effective date specified in the applicable Assignment and Assumption Agreement, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee it and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required assumed by it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations of a Lender hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assignunder the other Loan Documents, participate, or otherwise transfer any portion and Borrower hereby agrees that all of the Transferred Assets (and the rights and obligations hereunder) owned remedies of an assignee in connection with the interest so assigned shall be enforceable against Borrower by Administrative Agent on behalf of such Conduit Support Provider. The Transferor assignee with the same force and the Servicer hereby agree effect and consent to the complete assignment same extent as the same would have been enforceable but for such assignment, and (B) the 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 Assumption Agreement, relinquish its rights and be released from all of its obligations hereunder and thereunder. Notwithstanding anything to the applicable Owners of all ofcontrary contained herein, or the grant of a security interest in (or pledge of) no Lender shall be permitted to assign all or any portion of, their respective of its rights under, interest in, title to and or obligations under this Agreement and the Related other Loan Documents to Borrower or any Affiliate of Borrower. All the respective collateral rights and remedies of Borrower in connection with the interest so assigned shall be enforceable against such Eligible Assignee. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of $4,500, which shall be fully earned and shall be due and payable upon the effectiveness of any such assignment. Any partial assignment of a Lender’s portion of the Loan shall be in an amount at least equal to $5,000,000. Any assignment or transfer under this Section 9.7 shall be at no cost, expense or liability to Borrower for Administrative Agent’s or any Lender’s costs and expenses (other than (x) de minimis costs or expenses of Administrative Agent and (y) any costs incurred by Borrower).
(b) If at any time an assignment by the Administrative Agent of its interest in the Loan results in Administrative Agent holding less than 33 1/3% of the Commitment, then Borrower shall have the right within fifteen (15) Business Days after such assignment, to notify and require that Administrative Agent resign as administrative agent or trustee T-Mobile and a success administrative agent shall be appointed in accordance with the terms of Article X.
(EIPc) Third A&R RPAA under Promptly upon receipt of a fully executed and completed Assignment and Assumption Agreement, Administrative Agent shall record the applicable Conduit Purchaser’s Commercial Paper programinformation contained therein in its records and Administrative Agent shall promptly deliver a copy thereof to Borrower (provided that neither the Administrative Agent nor the Lender shall be liable for any failure to give such notice).
(d) Administrative Agent shall maintain a copy of each Assignment and Assumption Agreement delivered to and accepted by it and shall record in its records the name and address of such Lender and the Commitment of, and Percentage of the Loan owing to, such Lender from time to time. Borrower, Administrative Agent, and the Lenders may treat each entity whose name is so recorded as a Lender hereunder for all purposes of this Agreement.
(e) Anything in each case this Agreement to the contrary notwithstanding, and without the execution need to comply with any of the formal or procedural requirements of this Agreement, including this Section, each Lender may at any time and delivery from time to time pledge and assign all or any portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank or any Federal Home Loan Bank and such pledge shall be enforceable in accordance with the terms thereof.
(f) Anything in this Agreement to the contrary notwithstanding, any Lender may assign all or any portion of its rights and obligations under this Agreement to another branch bank or Affiliate of such Lender without first obtaining the approval of Administrative Agent or Borrower, provided that (A) such Lender remains liable hereunder unless Administrative Agent shall otherwise agree, (B) at the time of such assignment such Lender is not in default under its obligations hereunder, (C) such Lender gives Administrative Agent at least fifteen (15) days prior written notice of any such assignment, and (D) the parties to such assignment execute and deliver to Administrative Agent an Assignment and Assumption Agreement.
(bg) None of Each Lender shall have the Transferorright, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayBorrower or Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time to sell participations to one or more Persons who is a Permitted Transferee other Person (each, a “Participant”) participating interests in or to all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participanthereunder and under the other Loan Documents; provided, however, that (i) such OwnerLender’s rights and obligations under this Agreement (including without limitation its Commitment to Borrower hereunder) shall remain unchanged, (ii) such Owner Lender shall remain solely responsible to the other parties hereto for the performance hereof and thereofof its obligations hereunder, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each Agent and other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner Lender in connection with such OwnerLender’s rights and obligations under this Agreement and with regard to any and all payments to be made under this Agreement. Each Owner agrees that any agreement between such Owner , and (iv) the holder of any such Participant in respect of such participating participation interest shall not restrict be entitled to voting rights under this Agreement or condition the other Loan Documents. Any agreement or instrument pursuant to which a Lender sells such Owner’s a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement, provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, supplementmodification or waiver described in Section 10.6(b) hereof. Any partial participation of a Lender’s portion of the Loan shall be in an amount at least equal to $5,000,000. Any Lender’s efforts to sell a participation in the Loan shall be at no cost, waiver expense or modification liability to Borrower for Administrative Agent’s or any Lender’s costs and expenses (other than (x) de minimis costs or expenses of Administrative Agent and (y) any costs incurred by Borrower).
(h) Borrower acknowledges and agrees that, subject to Section 9.15 hereof, Administrative Agent and/or a Lender may provide to any prospective Eligible Assignee, prospective Participant or prospective pledgees originals or copies of this Agreement. The Transferor , any other Loan Document and the Servicer agree that each Participant shall be entitled to the benefits any other documents, instruments, certificates, opinions, insurance policies, letters of Article VIII as though they were Owners; providedcredit, that reports, requisitions and other materials and information of every nature or description, and may communicate all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may oral information, at any time pledge submitted by or grant on behalf of Borrower or Guarantor or received by Administrative Agent or such Lender in connection with the Loan or with respect to Borrower or Guarantor and such recipients shall be subject to confidentiality terms in accordance with Section 9.15. In order to facilitate assignments, transfers or grants of participation interests to an Eligible Assignee or a security interest in all Participant, Borrower shall execute such further documents, instruments or any portion of its rights (agreements as Administrative Agent may request, including, without limitation, rights to payment one or more new or replacement promissory notes, dated as of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery effective date of an Assignment and Assumption Agreement, after giving effect to such Assignment and Sections 9.7(a) and 9.7(c) Assumption Agreement, in exchange for the surrender from Administrative Agent to Borrower of the then outstanding promissory Notes, marked “Replaced” or “Substituted”, unless the original of such Notes is required to be maintained by Administrative Agent under applicable law; provided, however, that Borrower shall not apply be required to execute any such pledge document or grant of a security interest described agreement which would decrease its rights, or increase its obligations, relative to those set forth in this clause Agreement or any of the other Loan Documents (eincluding financial obligations, personal recourse, representations and warranties and reporting requirements). In addition, Borrower agrees to cooperate with Administrative Agent and each Lender in the exercise of such Lenders’ rights pursuant to this Section 9.7, including providing such information and documentation regarding Borrower as Administrative Agent, Lender or any potential Eligible Assignee or Participant may reasonably request and to meet with potential Eligible Assignees and/or Participants; provided provided, however, that under no such pledge circumstances shall Borrower or grant of a security interest shall release any Owner from any of its affiliates be obligated to execute any certificates or similar documents or provide any representations or warranties confirming the accuracy of any information or otherwise.
(i) Omitted.
(j) No Eligible Assignee of any rights and obligations hereunder or substitute under this Agreement shall be permitted to subassign such rights and obligations and no Participant in any rights and obligations under this Agreement shall be permitted to sell subparticipations of such pledgee or grantee for such Owner as a party heretorights and obligations without the express written consent of Administrative Agent.
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Assignments and Participations. (a) Each Funding Agent, each This Agreement shall be binding upon and inure to the benefit of the Conduit Purchasers Borrowers and the Committed Purchasers Lenders and their respective assignees successors and assigns; provided, however, that Borrowers may not assign or transfer any of their rights hereunder without any the prior written consentconsent of the Lenders and any such assignment without the Lenders' prior written consent shall be null and void. Each Lender may at any time sell, in whole assign or in partparticipate its rights and obligations under this Agreement (including, without limitation, all or a portion of its interest Commitments and the Loans made by it) without notice to or the consent of the Borrowers or any other Lenders.
(b) Any foreign Person who purchases or is assigned any portion of such Loan shall provide the Borrowers and the Administrative Agent (in the Transferred Assets case of a purchase or assignment) or the applicable 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 Loan.
(c) From and after the date that the Administrative Agent notifies the assignor Lender that it has received an executed Assignment and Acceptance (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and the Servicer hereby agree Acceptance, relinquish its rights (except rights granted pursuant to Section 14.15 with respect claims, losses, demands, settlements, damages, liabilities, obligations, penalties, fines, fees reasonable costs and consent expenses incurred with respect to the complete assignment by period of time that the applicable Owners assignor Lender was a party to this Agreement) and be released from its obligations under this Agreement (except with respect to Section 14.05) (and in the case of an Assignment and Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofthereto), and (iii) the Transferorsuch assignment shall effect a novation among Borrowers, the Servicerassignor Lender, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldAssignee.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion Immediately upon the effectiveness of its rights (includingsuch Assignment and Acceptance, without limitation, rights to payment of principal and interest on its Net Investment) 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 Related Documents resulting adjustment of the Commitments arising therefrom. The Commitments allocated to secure obligations each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) In connection with any such Owner to assignment or participation or proposed assignment or participation, a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in Lender may disclose all documents and information which it is domiciled now or located, and any Conduit Purchaser hereafter may assign all of, have relating to Borrowers or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, Borrowers' business; provided in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(cthat such assignee or participant (or prospective assignee or participant) shall not apply agree to any maintain the confidentiality of such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoinformation pursuant to Section 14.19.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more assignees (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $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 Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or in part, its interest Assignee has paid to Agent for Agent's sole and separate account a processing fee in the Transferred Assets amount of $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 assignor Lender that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor ------------ and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the originating Lender's obligations -------- ------- under this Agreement shall remain unchanged, (ii) such Owner the originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the originating Lender in connection with such Owner’s the originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR (S)203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Convergent Communications Inc /Co)
Assignments and Participations. The Lenders will be permitted to assign loans under the Second Lien Facility (other than to (a) Each Funding Agenta natural person, each (b) subject to the following paragraph, the Borrower and its affiliates or (c) to the extent they have been identified to the relevant Lender in writing prior to such assignment, Disqualified Institutions (as defined in the Commitment Letter) with the consent of the Conduit Purchasers and Borrower (such consent not to be unreasonably withheld or delayed); provided that such consent of the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor Borrower (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(sx) and its Funding Agent) will shall not be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignmenti) will be adjusted to such extent as may be necessary to reflect if such assignment is made to another Lender under the Second Lien Facility or an affiliate or approved fund of any such Lender or (ii) after the occurrence and Schedule I hereto during the continuance of an event of default and (y) shall be deemed to have been given if the Borrower has not responded within five business days of a request for such consent. All assignments will require the consent of the Agent, not to be amended accordingly)unreasonably withheld or delayed. Notwithstanding Each assignment will be in an amount of an integral multiple of $1,000,000 or, if less, all of such Lender’s remaining loans. Assignments will be by novation. An assignment fee in the foregoing, amount of $3,500 shall be paid by the applicable Conduit Support Documents respective assignor or assignee to the Agent. The Agent shall govern not be responsible for monitoring compliance with the ability Disqualified Lender list and shall have no liability for non-compliance by any Lender. Assignments of loans under the Second Lien Facility to the Borrower shall be permitted subject to the following limitations: (i) a Conduit Purchaser Holdings, the Borrower and its subsidiaries may not purchase loans under the Second Lien Facility at any time while they or any of their respective directors or officers is aware of any material non-public information with respect to assignthe business of Holdings, participatethe Borrower or any of their subsidiaries at the time of such purchase that has not been disclosed to Lenders generally, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider any offer to assignpurchase or take by assignment any loans under the Second Lien Facility by Holdings, participate, the Borrower or otherwise transfer any portion its subsidiaries shall have been made to all Lenders pro rata (with buyback mechanics to be agreed); (iii) no default or event of default has occurred and is continuing; and (iv) the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Providerloans purchased are immediately cancelled. The Transferor and the Servicer hereby agree and consent Lenders will be permitted to sell participations in loans (other than to a natural person or to the complete assignment by the applicable Owners Borrower and its affiliates) without restriction. Voting rights of all participants shall be limited to matters in respect of (a) increases in commitments of such participant, (b) reductions or forgiveness of principal, interest or fees payable to such participant, (c) extensions of final maturity or scheduled amortization of, or the grant date for payment of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferorfees on, the Servicer, the Administrative Agent, each other Owner loans or commitments in which such participant participates and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in releases of all or any portion substantially all of its rights (including, without limitation, rights to payment the value of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all ofGuarantees, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and substantially all of the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoCollateral.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Agent, each This Agreement shall be binding upon and inure to the benefit of the Conduit Purchasers Borrower and the Committed Purchasers Lenders and their respective assignees successors and assigns; provided, however, that Borrower may not assign or transfer any of their rights hereunder without the prior written consent of the Lenders and any such assignment without the Lenders' prior written consent shall be null and void. Each Lender may at any time sell, assign or participate its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Loans made by it) without notice to or the consent of the Borrower or any other Lenders; provided, however, that no Lender may assign without or transfer any prior written consent, of its rights hereunder in whole violation of the Transferee Side Letter and any assignment in violation thereof shall be null and void.
(b) Any foreign Person who purchases or in part, its interest is assigned any portion of such Loan shall provide the Borrower and the Administrative Agent (in the Transferred Assets case of a purchase or assignment) or the applicable 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 Loan.
(c) From and after the date that the Administration Agent notifies the assignor Lender that it has received an executed Assignment and Acceptance (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and the Servicer hereby agree Acceptance, relinquish its rights (except rights granted pursuant to Section 14.15 with respect claims, losses, demands, settlements, damages, liabilities, obligations, penalties, fines, fees reasonable costs and consent expenses incurred with respect to the complete assignment by period of time that the applicable Owners assignor Lender was a party to this Agreement) and be released from its obligations under this Agreement (except with respect to Section 14.05) (and in the case of an Assignment and Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofthereto), and (iii) the Transferorsuch assignment shall effect a novation among Borrower, the Servicerassignor Lender, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldAssignee.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion Immediately upon the effectiveness of its rights (includingsuch Assignment and Acceptance, without limitation, rights to payment of principal and interest on its Net Investment) 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 Related Documents resulting adjustment of the Commitments arising therefrom. The Commitments allocated to secure obligations each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) In connection with any such Owner to assignment or participation or proposed assignment or participation, a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in Lender may disclose all documents and information which it is domiciled now or located, and any Conduit Purchaser hereafter may assign all of, have relating to Borrower or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, Borrower's business; provided in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(cthat such assignee or participant (or prospective assignee or participant) shall not apply agree to any maintain the confidentiality of such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoinformation pursuant to Section 14.19.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Assignments and Participations. (a) Each Funding AgentAny Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, each or any ratable part of all, of the Conduit Purchasers Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000; provided, however, that 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 (iii) the assigning Lender or in part, its interest Assignee has paid to Agent for Agent’s separate account a processing fee in the Transferred Assets amount of $3,500, provided, however that the payment of such processing fee shall not be required with respect to any Assignment where the Assignee is an Affiliate of the assigning Lender. 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 payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assigning Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA 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 the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Article 15 and delivery Section 16.7 of an Assignment and Assumption this Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 payment and the 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections of Article VIII as though they were Owners; providedBorrowers, that all such amounts payable 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 Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may, subject to the provisions of Section 16.7, disclose all documents and information which it now or hereafter may have relating to Borrowers and their respective businesses.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR § 203.24, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) The Company may not assign any of its rights or obligations hereunder or under the Notes without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Funding Lender may assign any of its Loans, its Notes, and its Commitment (but only with the consent of, in the case of its outstanding Commitment, the Company, State Auto Mutual and the Administrative Agent, each provided that no such consent shall be unreasonably withheld); PROVIDED that 39
(i) no such consent by the Company, the Administrative Agent or the State Auto Obligors shall be required in the case of any assignment to another Lender;
(ii) except to the Conduit Purchasers extent the Company and the Committed Purchasers and their respective assignees may assign without any prior written Administrative Agent shall otherwise consent, any such partial assignment (other than to another Lender) shall be in whole an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Loans, Notes or Commitment shall be made in partsuch manner so that the same portion of its Loans, its interest in Notes and Commitment is assigned to the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunderrespective assignee; and
(iv) upon each such assignment, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and assignee shall deliver to the Transferor, the Servicer Company and the Administrative Agent an Assignment and Assumption AgreementAcceptance substantially in the form of Exhibit I hereto, duly completed and executed. Following any assignment in accordance with Upon execution and delivery by the foregoing criteriaassignor and the assignee to the Company and the Administrative Agent of such Assignment and Acceptance, consent thereto by the Company, the Ownership Group Percentage Administrative Agent and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect State Auto Mutual to the assignment) will be adjusted extent required above and acceptance thereof by the Administrative Agent, the assignee shall have, to such the extent as may be necessary to reflect of such assignment (unless otherwise consented to by the Company and Schedule I hereto shall be deemed to be amended accordinglythe Administrative Agent). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern obligations, rights and benefits of a Lender hereunder holding the ability of Commitment and Loans (ior portions thereof) a Conduit Purchaser assigned to assignit and specified in such Assignment and Acceptance (in addition to the Commitment and Loans, participateif any, or otherwise transfer any portion of the Transferred Assets (theretofore held by such assignee) and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assignassigning Lender shall, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by extent of such assignment, be released from the applicable Owners of all of, or the grant of a security interest in Commitment (or pledge ofportion thereof) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and so assigned. Upon each such assignment the Related Documents to assigning Lender shall pay the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery Administrative Agent an assignment fee of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents$3,000.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time A Lender may sell or agree to sell to one or more other Persons who is (each a Permitted Transferee (each, "PARTICIPANT") a “Participant”) participating interests participation in all or a portion any part of any Loans held by it, or in its Commitment, PROVIDED that such Participant shall not have any rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and or obligations under this Agreement or any Note or any other Credit Document (the Participant's rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Participant). All amounts payable by the Company to any Lender under Section 5 hereof in respect of Loans held by it, and its Commitment, shall remain unchangedbe determined as if such Lender had not sold or agreed to sell any participations in such Loans and Commitment, and as if such Lender were funding each of such Loan and Commitment in the same way that it is funding the portion of such Loan and Commitment in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Credit Document except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) increase or extend the term of such Lender's Commitment, (ii) such Owner shall remain solely responsible extend the date fixed for the performance hereof and thereofpayment of principal of or interest on the related Loan or Loans or any portion of any fee hereunder payable to the Participant, and (iii) reduce the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and amount of any such Participant in respect payment of such participating principal, (iv) reduce the rate at which interest shall not restrict is payable thereon, or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been fee hereunder payable to the Owner selling such participating interest had Participant, to a level below the rate at which the Participant is entitled to receive such interest not been soldor fee or (v) consent to any modification, supplement or waiver hereof or of any of the other Credit Documents to the extent that the same, under Section 10.09 or 11.03 hereof, requires the consent of each Lender.
(d) Any Owner In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.05, any Lender may at (without notice to the Company, the State Auto Obligors, the Administrative Agent or any time other Lender and without payment of any fee)
(i) assign and pledge all or grant a any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security interest in pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and its Loans and its Notes to an affiliate. No such assignment shall release the Related Documents to secure assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Company in the possession of such Owner Lender from time to a Federal Reserve Banktime to assignees and participants (including prospective assignees and participants), subject, however, to the U.S. Treasuryprovisions of Section 11.11(b) hereof.
(f) Anything in this Section 11.05 to the contrary notwithstanding, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser no Lender may assign all of, or the grant of a security participate any interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents Loan held by it hereunder to the respective collateral agent Company or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder Affiliates or substitute to any such pledgee or grantee for such Owner as a party heretoState Auto Obligor (except pursuant to the Put Agreement) without the prior consent of each Lender.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000; provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000; provided, further, however, that prior to an Event of Default, no Lender shall, without the consent of Administrative Borrower, assign all, or any ratable part of all, of the Conduit Purchasers Obligations, the Revolver Commitments and the Committed Purchasers other rights and their respective assignees may assign without obligations of such Lender hereunder and under the other Loan Documents to any prior written consent, in whole or in part, its interest Person reasonably determined by Agent to be engaged principally in the Transferred Assets same business as Parent. 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 assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowers or the performance or observance by Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Revolver Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (World Airways Inc /De/)
Assignments and Participations. (a) Each Funding AgentAny Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
Agent and Borrower (c) Any Owner mayprovided that no written consent of Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), in the ordinary course of its business assign and in accordance with applicable law, at any time sell delegate to one or more Persons who is a Permitted Transferee assignees (each, a each an “ParticipantAssignee”) participating interests in all all, or a portion any ratable part of its all, of the Obligations, the Commitments and the other rights and obligations hereunder. Notwithstanding of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (except such minimum amount shall not apply to any such sale by an Owner Affiliate of participating interests a Lender or to a ParticipantRelated Fund or account managed by a Lender); provided, (i) such Owner’s rights however, that Borrower and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, 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 substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent or Borrower shall not be required (and payment of any fees shall not be required) if (y) 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 (z) the Assignee is an Affiliate of a Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.except with respect to
Appears in 1 contract
Assignments and Participations. (a) Each Funding Agent, each This Agreement shall be binding upon and inure to the benefit of the Conduit Purchasers Borrowers and the Committed Purchasers Lenders and their respective assignees successors and assigns; provided, however, that Borrowers may not assign or transfer any of their rights hereunder without any the prior written consentconsent of the Lenders and the Agents and any such assignment without the Lenders' and the Agents' prior written consent shall be null and void. Each Lender may at any time sell, in whole assign or in partparticipate its rights and obligations under this Agreement (including, without limitation, all or a portion of its interest Commitments and the Loans made by it) without notice to or the consent of the Borrowers or any other Lenders but with the prior written consent of the Administrative Agent. Any such assignment by a Lender shall be effected pursuant to an Assignment and Acceptance, and the Administrative Agent's consent to such assignment shall be evidenced by its signature thereto.
(b) Any non-U.S. Person who purchases, is assigned or is granted a participation in, any portion of such Loan shall provide the Borrowers and the Administrative Agent (in the Transferred Assets case of a purchase or assignment) or the applicable 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 or participant.
(c) From and after the date that the Administrative Agent notifies the assignor Lender that it has received an executed Assignment and Acceptance and has indicated thereon its consent thereto, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and the Servicer hereby agree Acceptance, relinquish its rights (except rights granted pursuant to Section 14.15 with respect to claims, losses, demands, settlements, damages, liabilities, obligations, penalties, fines, fees reasonable costs and consent expenses incurred with respect to the complete assignment by period of time that the applicable Owners assignor Lender was a party to this Agreement) and be released from its obligations under this Agreement (except with respect to Section 14.05) (and in the case of an Assignment and Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofthereto), and (iii) the Transferorsuch assignment shall effect a novation among Borrowers, the Servicerassignor Lender, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldAssignee.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion Immediately upon the effectiveness of its rights (includingsuch Assignment and Acceptance, without limitation, rights to payment of principal and interest on its Net Investment) 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 Related Documents resulting adjustment of the Commitments arising therefrom. The Commitments allocated to secure obligations each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) In connection with any such Owner to assignment or participation or proposed assignment or participation, a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in Lender may disclose all documents and information which it is domiciled now or located, and any Conduit Purchaser hereafter may assign all of, have relating to Borrowers or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, Borrowers' business; provided in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(cthat such assignee or participant (or prospective assignee or participant) shall not apply agree to any maintain the confidentiality of such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoinformation pursuant to Section 14.19.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, each with the written consent of the Conduit Purchasers Agents and Borrower, assign and delegate to one or more assignees (provided that no written consent of any such Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to any fund or account managed by a Lender); provided, however, that Borrower and the Agents may continue to deal solely and directly with such Lender in partconnection 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 the Agents by such Lender and the Assignee; (ii) such Lender and its interest Assignee shall have delivered to Borrower and the Agents a fully executed Assignment and Acceptance ("Assignment and Acceptance") substantially in the Transferred Assets form of Exhibit A-1; and (iii) the assignor Lender or Assignee has paid to Collateral Agent for Collateral Agent's sole and separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, no consent of any Agent shall 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 or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by, a Lender.
(b) From and after the date that Collateral Agent notifies the assignor Lender that it has received a fully executed Assignment and Acceptance and payment (if applicable) of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) such Assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (5) such Assignee appoints and authorizes Agents to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agents by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 the Agents, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations owing to such Lender, such Lender's Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of any Agent shall be required in connection with any sale of such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Borrower shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 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; (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant is participating; or (F) subordinate the Liens of Collateral Agent for the benefit of the Lender Group to the Liens of any other creditor of Borrower; and (v) all amounts payable by Borrower 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-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; and (vi) such Participant shall not restrict or condition such Owner’s right have delivered to agree Borrower and the Agents a confidentiality agreement evidencing the Participant's agreement to any amendment, supplement, waiver or modification be bound by the provisions of Section 17.16(d) hereof as if the Participant were a party to this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any direct rights as to the benefits other Lenders, Collateral Agent, Administrative Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Advances. No Participant shall be limited have the right to participate directly in the amounts which would making of decisions by Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of Lender Group, and Borrower shall not have been payable to the Owner selling any rights as a third party beneficiary of any of such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business so long as the prospective assignee or participant has agreed in writing to be bound by the provisions of Section 19.11 hereof as if it were a party hereto.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of the Advance held by such Lender. A Registered Loan (and the Registered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each Registered Note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the Registered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the Registered Note, if any, evidencing the same duly endorsed by (or pledge ofaccompanied 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 Loan (and the Registered Note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all or any portion ofpayments thereon and for all other purposes, notwithstanding notice to the contrary.
(i) In the event that a Lender sells participations in the Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "Participant Register"). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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, provided, that assignments of Revolving Credit Commitments and Obligations in respect of any Borrowings shall be in a minimum amount of $5,000,000; and provided, further, that assignments of all or a portion of a Tranche B Lender’s interests or a Tranche C Lender’s interests, rights and obligations under this Agreement may be assigned without the written consent of the Agent if (i) an Event of Default exists or (ii) the assignment is to an existing Lender hereunder; provided, however, that Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) 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, (y) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance in form and substance satisfactory to Agent, each and (z) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 12.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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 Borrowers or the performance or observance by Borrowers 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.
(d) Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent extent such amendment to, or trustee consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final Termination 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery occurrence of an Assignment and Assumption AgreementEvent of Default, and Sections 9.7(a) and 9.7(c) each Participant shall not apply be deemed to any such pledge or grant have the right of a security interest described set-off in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any respect of its obligations hereunder or substitute any such pledgee or grantee for such Owner 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 party hereto.Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of the
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Assignments and Participations. (ai) Each Funding Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations (other than Bank Product Obligations) owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent (such consent not be unreasonably withheld or delayed) of: (A) Borrowers; provided, that no consent of Borrowers shall be required (1) if a Default or Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five Business Days after having received notice thereof; and (B) Agent, each Swing Lender, and Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions: (A) no assignment may be made to a Disqualified Institution or a natural person, (B) no assignment may be made to a Loan Party, or an Affiliate of a Loan Party,
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the Conduit Purchasers and required processing fee, (i) the Committed Purchasers and their respective assignees may assign without any prior written consentAssignee thereunder shall be a party hereto and, in whole or in part, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents a “Lender” and shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assigning Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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) owned by such Conduit Support Provider. The Transferor and be released from any future obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA termination of this Agreement, including such assigning Lender’s obligations under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution Section 15 and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsSection 17.9(a).
(c) Any Owner mayBy executing and delivering an Assignment and Acceptance, in the ordinary course of its business assigning Lender thereunder and in accordance the Assignee thereunder confirm to and agree with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights each other and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, the other parties hereto as follows: (i) other than as provided in such Owner’s rights Assignment and obligations under 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 shall remain unchangedor the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such Owner shall remain solely responsible for assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that or observance by any agreement between such Owner and Loan Party of any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper programany other Loan Document furnished pursuant hereto, in each case without the execution and delivery (iii) such Assignee confirms that it has received a copy of an Assignment and Assumption this Agreement, together with such other documents and Sections 9.7(a) and 9.7(c) shall not apply information as it has deemed appropriate to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of make its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.own credit analysis and
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Assignments and Participations. (a) Each Funding Agent, each Without in any way limiting any rights of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations Lender under this Agreement and the Related Documents or any other Loan Document but subject to the respective collateral agent or trustee T-Mobile (EIPlimitation set forth in Section 2.6(a) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper programabove, in each case without the execution Lender, at its sole cost and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferorexpense, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunderunder this Agreement, the Note and the Loan.
(b) Borrowers will maintain a book of registry in which it will register by book entry, and register by book entry any transfer of, the rights to receive any payments under the Note and the name and address of each assignee Lender under this Agreement and the Note, and the principal amount of the Loan owing to each such Lender pursuant to the terms hereof. Notwithstanding Borrowers may treat each Lender whose name is recorded in the registry pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary or any such sale notation of ownership or other writing or any other note. The registry shall be available for inspection by an Owner any Lender at the Borrowers’ principal place of participating interests business, at any reasonable time and from time to time, upon reasonable prior notice.
(c) Without in any way limiting any rights of Lender under this Agreement or any other Loan Document, Lender may sell, at its sole cost and expense, participations to one or more Persons in or to all or a Participant, (i) such Owner’s portion of its rights and obligations under the Note, this Agreement and the Loan; provided, however, that (i) Lender’s obligations under the Note and this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible to Borrower for the performance hereof and thereofof such obligations, and (iii) Lender shall remain the Transferorholder of the Note for all purposes of the Note, the Servicer, the Administrative Agent, each other Owner Loan and the Funding Agents this Agreement and (iv) Borrower shall continue to deal solely and directly with such Owner Lender in connection with such OwnerLender’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor Loan Agreement and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldother Loan Documents.
(d) Any Owner may at Without in any time pledge or grant a security interest in all or way limiting any portion rights of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) Lender under this Agreement and or any other Loan Document, Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.34, disclose to the Related Documents assignee or participant or proposed assignee or participant, as the case may be, any information relating to secure obligations of such Owner to a Federal Reserve Bankany CNL Affiliates, the U.S. Treasury, the Federal Deposit Insurance Corporation Intrawest or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all ofIntrawest Tenant, or to any aspect of the grant Loan that has been furnished to the Lender by or on behalf of a security interest in (or pledge of) all the Borrower, CNL Affiliates Intrawest or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoIntrawest Tenant.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Bank may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of the Company (at all Funding Agents.
(ctimes other than during the existence of an Event of Default) Any Owner mayand the Agent, in which consent of the ordinary course of its business and in accordance with applicable lawCompany shall not be unreasonably withheld, at any time sell assign and delegate to one or more Persons who Eligible Assignees (provided that no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is a Permitted Transferee an Affiliate of such Bank) (eacheach an "ASSIGNEE") all, a “Participant”) participating interests in all or a portion any ratable part of its all, of the Revolving Loans, the Commitment and the other rights and obligations of such Bank hereunder. Notwithstanding any such sale by an Owner , in a minimum amount of participating interests to a Participant$5,000,000; PROVIDED, (i) such Owner’s rights and obligations under this Agreement shall remain unchangedHOWEVER, (ii) such Owner shall remain solely responsible for that the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Company and the Funding Agents shall Agent may continue to deal solely and directly with such Owner Bank in connection with the interest so assigned to an Assignee until (i) written notice of such Owner’s assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Company and the Agent by such Bank and the Assignee; (ii) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with any Revolving Note or Revolving Notes subject to such assignment and (iii) the assignor Bank or Assignee has paid to the Agent a processing fee in the amount of $3,000.
(b) From and after the date that the Agent notifies the assignor Bank that it has received (and provided its consent with respect to) an executed Assignment and Acceptance (accompanied by any written consent of the Company to the extent required) and payment of the 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 have the rights and obligations of a Bank under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assignor Bank shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Owner selling such participating interest had such interest not been soldLoan Documents.
(dc) Any Owner may at Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance (accompanied by any time pledge or grant written consent of the Company to the extent required) and payment of the processing fee, (and provided that it consents to such assignment in accordance with subsection 15.7(a)), the Company shall execute and deliver to the Agent, new Revolving Notes evidencing such Assignee's assigned Revolving Loans and Commitment and, if the assignor Bank has retained a security interest in all or any portion of its rights Revolving Loans and its Commitment, replacement Revolving Notes in the principal amount of the Revolving Loans retained by the assignor Bank (includingsuch Revolving Notes to be in exchange for, without limitationbut not in payment of, rights to the Revolving Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment of principal under the Assignment and interest on its Net Investment) under 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 Related Documents to secure obligations resulting adjustment of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in Commitments (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in related Percentage of each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(aBank) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.arising
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee, assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender or to be a Related Fund); 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or (y) the assignee is an Affiliate (other than individual(s)) of a Lender or a Related Fund.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment (if applicable) of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, or (F) subordinate the Liens of Agent for the benefit of the Lender Group on all or substantially all of the Collateral to the Liens of any other creditor of Borrower, 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 14.1(e) are solely for the Servicer to any benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower’s business, provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 16.17(d).
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedUnited States Treasury Regulation 31 CFR § 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(h) Subject to the last sentence of this Section 14.1(h), Borrower shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of each Advance, as the case may be, held by such Lender. 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). Subject to the last sentence of this Section 14.1(h), 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 pledge ofaccompanied 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 an assignment or sale of any Registered Loan (and the Registered Note, if any, evidencing the same), Borrower and Agent shall treat the Person in whose name such Registered Loan (and the Registered Note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of an assignment or any portion ofdelegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a register comparable to the Register on behalf of Agent.
(i) In the event that a Lender sells participations in a Registered Loan, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the “Participant Register”). A Registered Loan (and the Related Documents to Registered Note, if any, evidencing the respective collateral agent same) may be participated in whole or trustee under in part only by registration of such participation on the applicable Conduit Purchaser’s Commercial Paper programParticipant Register (and each Registered Note shall expressly so provide). Any participation of such Registered Loan (and the Registered Note, in each case without if any, evidencing the execution and delivery same) may be effected only by the registration of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparticipation on the Participant Register.
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an “Assignee”) all, or any 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 of $5,000,000 (provided, that so long as no Event of Default exists and the Maximum Revolving Amount does not exceed $22,500,000, there shall be no more than four Lenders holding commitments at any time and Bank of America National Association shall not be one of the Lenders); provided, however, that 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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender’s rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Companies or the performance or observance by Companies of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is a Permitted Transferee not Affiliates of such Lender (each, a “Participant”) participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorCompanies, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Ownerthe Originating Lender’s rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) all amounts payable by 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-off in respect of such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Companies, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Companies or Companies’ business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR § 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a fund or account managed by a Lender); PROVIDED, HOWEVER, that 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 a fully executed Assignment and Acceptance in form and substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender or the assignee is an Affiliate (other than individuals) of, or a fund, money market account, investment account or other account managed by Lender or an Affiliate of a Lender).
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Administrative Borrower, if applicable) that it has received fully executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment (if applicable) of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrowers and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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 Borrowers or the performance or observance by Borrowers 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.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “Participant”"PARTICIPANT") participating interests in all or a portion its Obligations owing to such Lender, the Commitment of its such Lender, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "ORIGINATING LENDER") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); PROVIDED, HOWEVER, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrowers, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 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, (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such Participant is participating, or (F) subordinate the Agent's Liens for the benefit of the Lender Group to the Liens of any other creditor of Borrowers; and (v) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Ownersthe Obligations; providedPROVIDED that, that all such amounts payable by in the Transferor or the Servicer to any case of SECTION 16.11, such Participant shall be limited have complied with the requirements of such Section. No Participant shall have the right to participate directly in the amounts which would 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 been payable to the Owner selling any right as a third party beneficiary of any such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrowers or Borrowers' business subject to the agreement that such prospective assignee or participant holds such materials on the same confidential basis as the Lenders.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in any manner permitted under applicable law.
(or pledge ofh) all or any portion The Agent, acting for this purpose as an agent of Borrowers, shall maintain at the address set forth in SECTION 12 a copy of each Assignment and Acceptance delivered to 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"). The entries in the Register shall be conclusive, and Borrowers, Agent and 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 of the contrary In the event that any Lender sells participations in any Obligations, such Conduit Purchaser’s respective rights underLender shall maintain a register on which it enters the name of all participants in such Obligations held by it (the "PARTICIPANT Register"). Any Obligation (and the registered note, interest inif any, title 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 Obligations (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(i) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, payment of the processing and recordation fee and any required written consent to such assignment, Agent shall accept such Assignment and obligations under Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement and unless it has been recorded in the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described Register as provided in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoparagraph.
Appears in 1 contract
Assignments and Participations. (a) Each Funding Lender shall have the right to assign, transfer, sell, negotiate, pledge or otherwise hypothecate this Agreement and any of its rights and security hereunder and under the other Loan Documents to any other Eligible Assignee with the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed, provided however, that the parties to each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an such assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to shall execute and deliver to the TransferorAdministrative Agent, the Servicer for its approval and the Administrative Agent acceptance, an Assignment and Assumption AgreementAssumption. Following any assignment Upon such execution, delivery, approval and acceptance, and upon the effective date specified in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of Assignment and Assumption, (i) the Eligible Assignee thereunder shall be a Conduit Purchaser party hereto and, to assignthe extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Assumption, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations of a Lender hereunder owned and under the other Loan Documents, and Borrower hereby agrees that all of the rights and remedies of Lenders in connection with the interest so assigned shall be enforceable against Borrower by it) an Eligible Assignee with the same force and effect and to its Conduit Support Providers the same extent as the same would have been enforceable but for such assignment, and (ii) a Conduit Support Provider the assigning Lender thereunder shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support ProviderAssignment and Assumption, relinquish its rights and be released from its obligations hereunder and thereunder. The Transferor Borrower shall use reasonable efforts to cooperate with Administrative Agent and each Lender in connection with the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations interests under this Agreement and or the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery sale of an Assignment and Assumption Agreementparticipations herein.
(b) None of Each Lender shall have the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time right to sell participations to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests Eligible Assignees in or to all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participantunder the Loan and the Loan Documents' provided however, that (i) such Owner’s rights and Lender's obligations under this Agreement (including without limitation its Commitment to Borrower hereunder) shall remain unchanged, (ii) such Owner Lender shall remain solely responsible to the other parties hereto for the performance hereof and thereofof such obligations, and (iii) the Transferor, the ServicerBorrower, the Administrative Agent, each other Owner Agent and the Funding Agents other Lenders shall continue to deal solely and directly with such Owner Lender in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents with Table Of Contents regard to the respective collateral agent or trustee any and all payments to be made under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption this Agreement, and Sections 9.7(a(iv) and 9.7(c) the holder of any such participation shall not apply be entitled to any voting rights under this Agreement or the other Loan Documents. Upon written request by the Borrower to the Agent, the Agent shall promptly provide to the Borrower the identity of each participant and the current amount of each participation with respect to each Lender and, upon the request of Agent, each Lender shall promptly provide the Agent with such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoinformation required to satisfy Borrower's request.
Appears in 1 contract
Sources: Construction and Term Loan Agreement (Investors Real Estate Trust)
Assignments and Participations. (a) Each Funding AgentAfter the Closing Date, each the Lenders will be permitted to assign loans and/or commitments under the Term Facilities with the consent of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer Borrower and the Administrative Agent an Assignment (in each case, not to be unreasonably withheld, delayed or conditioned) and Assumption Agreement. Following any assignment in accordance loans and commitments under the Revolving Credit Facility with the foregoing criteriaconsent of the Borrower, the Ownership Group Percentage Swingline Lender, the Issuing Banks and Ownership Group Purchase Limit the Administrative Agent (in each case not to be unreasonably withheld or delayed); provided that (i) no consent of each Ownership Group hereunder the Borrower shall be required (after giving effect A) with respect to the assignment) will be adjusted to such extent as may be necessary to reflect Term Facilities, if such assignment is made to another Lender or an affiliate or approved fund of such Lender, (B) with respect to the Revolving Credit Facility, if such assignment is made to another Revolving Lender or an affiliate or approved fund of such Revolving Lender or (C) after the occurrence and Schedule I hereto during the continuance of an event of default, (ii) the Borrower’s consent shall be deemed to have been given if the Borrower has not responded within ten business days of an assignment request made in writing and (iii) no consent of the Administrative Agent shall be amended accordingly)required with respect to any assignment if such assignment is an assignment to another Lender, an affiliate of a Lender or an approved fund of a Lender; provided, further, that no assignments shall be made to any Disqualified Institutions. Notwithstanding Each assignment (other than to another Lender, an affiliate of a Lender or an approved fund) will be in an amount of an integral multiple of $1,000,000 in the foregoingcase of the Term Facilities and a minimum amount of $5,000,000 in the case of the Revolving Credit Facility (or lesser amounts, if agreed between the Borrower and the Administrative Agent) or, if less, all of such Lender’s remaining loans and commitments of the applicable Conduit Support Documents shall govern class. Assignments will be by novation and will not be required to be pro rata among the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support ProviderCredit Facilities. The Transferor and the Servicer hereby agree and consent Lenders will be permitted to the complete assignment by the applicable Owners of all of, or the grant of a security interest sell participations in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case loans without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and restriction in accordance with applicable lawlaw and consistent with the Documentation Principles. Voting rights of participants shall be limited to matters set forth under the caption “Voting” with respect to which the unanimous vote of all Lenders (or all directly and adversely affected Lenders, at if the participant is directly and adversely affected) would be required. Subject to the provisions below, non-pro rata distributions will be permitted in connection with loan buy-back programs on terms to be mutually agreed. Assignments of Term Loans (and loans under any time sell Incremental Term Facilities) to, and purchases by, the Borrower and its subsidiaries will be permitted without any consent solely through Dutch auctions open to one or more Persons who is all applicable Lenders on a Permitted Transferee (eachpro rata basis in accordance with customary procedures to be mutually agreed upon, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, so long as (i) such Owner’s rights no event of default has occurred and obligations under this Agreement shall remain unchangedis continuing, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, loans purchased are immediately cancelled and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner proceeds from any of its obligations hereunder or substitute any Revolving Loan are used to fund such pledgee or grantee for such Owner as a party heretoassignments.
Appears in 1 contract
Sources: Joinder Agreement to Commitment Letter (PMC Sierra Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $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 substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 Conduit Purchasers business or loan portfolio of such Lender.
(b) From and after the Committed Purchasers date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and their respective assignees may assign without any prior written consentAcceptance and payment of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereof, and of such obligations; (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents; (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR ss.203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentLender may assign and delegate to one or more assignees (each an "Assignee") all, each or any ratable part of all, of the Conduit Purchasers Obligations and the Committed Purchasers other rights and their respective assignees obligations of Lender hereunder and under the other Loan Documents, provided that, unless an Event of Default is then in existence and has theretofore been continuing for 30 consecutive days, the consent of Borrower shall be required for any such assignment other than an assignment by Lender as part of a sale of all or substantially all of Lender's assets (which consent shall not be unreasonably withheld or delayed); provided, further, that Borrower may assign without any prior continue to deal solely and directly with Lender in connection with the interest so assigned to an Assignee until (i) written consentnotice of such assignment, in whole or in parttogether with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower by Lender and the Assignee, and (ii) Lender and its interest in Assignee have delivered to Borrower an appropriate assignment and acceptance agreement.
(b) From and after the Transferred Assets date that Lender provides Borrower with such written notice and executed assignment and acceptance agreement, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an it pursuant to such assignment hereunderand acceptance agreement, both shall have the assignee assigned and delegated rights and obligations of Lender under the assignor Loan Documents, and (includingii) Lender shall, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the that rights and obligations hereunder owned and under the other Loan Documents have been assigned and delegated by itit pursuant to such assignment and acceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) to and be released from its Conduit Support Providers obligations under this Agreement (and (ii) a Conduit Support Provider to assign, participate, in the case of an assignment and acceptance covering all or otherwise transfer any the remaining portion of the Transferred Assets (and the Lender's rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayImmediately upon Borrower's receipt of such fully executed assignment and acceptance agreement, in this Agreement shall be deemed to be amended to the ordinary course extent, but only to the extent, necessary to reflect the addition of its business the Assignee and in accordance with applicable law, the resulting adjustment of the rights and duties of Lender arising therefrom.
(d) Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a ParticipantLender hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Lender shall continue to deal solely and directly with such Owner each other in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) Lender shall not transfer or grant any agreement between 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 Owner and 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 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 Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through Lender and the Servicer agree that each no Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor have any rights under this Agreement or the Servicer other Loan Documents or any direct rights as to any such Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall be limited have the right to participate directly in the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldmaking of decisions by Lender.
(de) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(f) Any Owner other provision in this Agreement notwithstanding, Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR §203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Special Devices Inc /De)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees Any Lender may assign without any prior written consentand delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees; provided, in whole that no Loan Party or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit Affiliate of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto a Loan Party shall be deemed permitted to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge ofbecome an Assignee) all or any portion ofratable part of all, their respective rights underof the Obligations, interest in, title to and obligations under this Agreement the Commitments and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its other rights and obligations hereunder. Notwithstanding 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 such sale by Lender to any other Lender or an Owner Affiliate of participating interests to any Lender or (y) a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agentgroup of new Lenders, each of which is an Affiliate of each other Owner 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 the Funding Agents shall Agent may continue to deal solely and directly with such Owner Lender in connection with the interest so assigned to an Assignee until (i) written notice of such Ownerassignment, 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, (iii) Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), 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 have the rights and obligations of a Lender under this Agreement. Each Owner agrees that any agreement between such Owner the Loan Documents, and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment(ii) the assigning Lender shall, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, extent that all such amounts payable by rights and obligations hereunder and under the Transferor or the Servicer to any such Participant shall be limited to the amounts which would other Loan Documents have been payable assigned by it pursuant to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of Assignment and Acceptance, relinquish its rights (including, without limitation, rights except with respect to payment of principal Section 10.3 hereof) and interest on its Net Investment) be released from any future obligations under this Agreement (and in the Related Documents to secure obligations case of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation an Assignment and Acceptance covering all or the central bank remaining portion of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaseran assigning Lender’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution be a party hereto and delivery of an Assignment and Assumption Agreementthereto), and Sections 9.7(a) such assignment shall effect a novation among Borrower, the assigning Lender, and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e)the Assignee; provided provided, however, that no such pledge or grant of a security interest nothing contained herein shall release any Owner assigning Lender from any obligations that survive the termination of its this Agreement, including such assigning Lender’s obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretounder Section 15 and Section 17.9(a) of this Agreement.
(c) [Intentionally Omitted]
Appears in 1 contract
Sources: Credit Agreement (SAVVIS, Inc.)
Assignments and Participations. GE Capital may assign its rights and delegate its obligations as a Lender under this Agreement and, further, may assign, or sell participations in, all or any part of its Revolving Credit Advances, its Commitments, its portion of the Letter of Credit Obligations, the Term Loan and the Capital Expenditure Loan or any other interest herein or in its Revolving Credit Note, in its Term Loan Notes or in its Capital Expenditure Loan Notes to an Affiliate or to any other Person. Unless Agent shall have otherwise agreed in writing, no other Lender shall assign any of its rights or delegate any of its obligations under this Agreement or any of the other Loan Documents or assign, or sell any participation in, all or any part of its Revolving Credit Advances, its Commitments, its portion of the Letter of Credit Obligations, Term Loan or Capital Expenditure Loan or any other interest herein or in its Revolving Credit Note, in its Term Loan Notes or in its Capital Expenditure Loan Notes to any Affiliate or other Person.
(a) Each Funding Agentprior to such assignment, each the proposed assignee shall have complied with the then applicable provisions of Section 1.19(b) and (b) the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or portion of the Conduit Purchasers and Term Loan or Capital Expenditure Loan or assigned portion of any thereof. After the Committed Purchasers and their respective assignees may assign without consummation of any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both Agent shall notify Borrower of the same within a reasonable period of time. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignor assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Revolving Credit Advances, fund the Term Loan or the Capital Expenditure Loan or incur Letter of Credit Obligations hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share. GE Capital may (includingor, in the event, if any, that Agent shall so agree in writing, another Lender may) sell participations in all or any part of any Revolving Credit Advances made, any funding of the Term Loan or Capital Expenditure Loan made, or any Letter of Credit Obligations incurred, by it as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will a Lender to an Affiliate or any other Person; provided that all amounts payable by Borrower hereunder shall be required to execute and deliver to the Transferor, the Servicer determined as if that Lender had not sold such participation and the Administrative Agent an Assignment holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except action directly affecting (a) any reduction in the principal amount, interest rate or fees payable with respect to any Revolving Credit Advances or portion of the Term Loan or Capital Expenditure Loan in which such holder participates, (b) any extension of the final scheduled maturity date of the principal amount of the Revolving Credit Advances or portion of the Term Loan or Capital Expenditure Loan in which such holder participates, and Assumption Agreement. Following (c) any assignment release of any Collateral with a value in excess of Fifty Thousand Dollars ($50,000) in the aggregate (other than in accordance with the foregoing criteriaterms of this Agreement, the Ownership Group Percentage Collateral Documents or the other Loan Documents). Borrower hereby acknowledges and Ownership Group Purchase Limit agrees that any participation will give rise to a direct obligation of each Ownership Group hereunder (after giving effect Borrower to the assignment) will participant and the participant shall for purposes of Sections 1.16, 1.17 and 9.3 be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed considered to be amended accordingly)a "Lender". Notwithstanding Unless Agent shall have otherwise agreed in writing, no Lender, other than GE Capital, shall sell any participation in all or any part of any Revolving Credit Advances made, any funding of the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participateTerm Loan or Capital Expenditure Loan made, or any Letter of Credit Obligations incurred, by it to any Affiliate or other Person. Except as otherwise transfer provided in this Section 9.1, no Lender shall, as between Borrower and that Lender, be relieved of any portion of the Transferred Assets (and the rights and its obligations hereunder owned by it) to its Conduit Support Providers and (ii) as a Conduit Support Provider to assignresult of any sale, participateassignment, transfer or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all negotiation of, or the grant granting of a security interest in (or pledge of) participation in, all or any portion ofpart of the Revolving Credit Advances, their respective rights underthe Revolving Credit Notes, interest inthe Term Loan, title the Term Loan Notes, the Capital Expenditure Loan, the Capital Expenditure Loan Notes, the Letter of Credit Obligations, or other Obligations owed to such Lender. Any Lender permitted to sell assignments and obligations participations under this Agreement Section 9.1 may furnish any information concerning Borrower and its Subsidiaries in the Related Documents possession of that Lender from time to the respective collateral agent time to assignees and participants (including prospective assignees and participants). Borrower shall assist any Lender permitted to sell assignments or trustee T-Mobile (EIP) Third A&R RPAA participations under the applicable Conduit Purchaser’s Commercial Paper programthis Section 9.1 in whatever manner reasonably necessary in order to enable or effect any such assignment or participation, in each case without including the execution and delivery of an Assignment any and Assumption Agreement.
(b) None all agreements, notes and other documents and instruments as shall be requested and the preparation of informational materials for, and the Transferorparticipation of relevant management in meetings with, ▇▇▇▇▇ potential assignees or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayparticipants; provided, in the ordinary course of its business and in accordance with applicable lawthat, at any time sell to one or more Persons who is a Permitted Transferee (eachaside from nominal expenses, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement Borrower shall remain unchanged, (ii) such Owner shall remain solely not be responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and due diligence expenses or attorney's fees or expenses of any such Participant in respect of such participating interest shall not restrict prospective assignee or condition such Owner’s right to agree to any amendmentparticipant, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII except as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (includingotherwise required herein and, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and limiting the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper programforegoing, in each case without Section 1.19(c). Borrower shall certify the execution correctness, completeness and delivery accuracy of an Assignment all descriptions of Borrower and Assumption Agreement, its affairs contained in any selling materials and Sections 9.7(a) all information provided by Borrower and 9.7(c) shall not apply to any included in such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretomaterials.
Appears in 1 contract
Sources: Credit Agreement (Artra Group Inc)
Assignments and Participations. (a) Each Funding AgentThe Bank shall have the ------------------------------- unrestricted right at any time and from time to time, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written Borrower's consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) assign all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder to one or more banks or other financial institutions (each, an "Assignee"), and the Borrower agrees that it shall execute, or cause to be executed, such documents including, without limitation, amendments to this Agreement and to any other documents, instruments and agreements executed in connection herewith as the applicable Bank shall deem necessary to effect the foregoing. In addition, at the request of the Bank and any such Assignee, Borrower shall issue one or more new promissory notes, as applicable, to any such Assignee and, if the applicable Bank has retained any of its rights and obligations hereunder following such assignment, to the Bank, which new promissory notes shall be issued in replacement of, but not in discharge of, the liability evidenced by the Note held by the Bank prior to such assignment and shall reflect the amount of the Commitment and Loans held by such Assignee and the Bank after giving effect to such assignment. Upon the execution and delivery of appropriate assignment documentation, amendments and any other documentation required by the Bank in connection with such assignment, and the payment by Assignee of the purchase price agreed to by the Bank and such Assignee, such Assignee shall be a party to this Agreement and shall have all of the rights and obligations of a Bank hereunder (and under any and all other Loan Documents executed in connection herewith) to the extent that such rights and obligations have been assigned by the applicable Bank pursuant to the assignment documentation between the Bank and such Assignee, and the Bank shall be released from its obligations hereunder and thereunder to a corresponding extent. The Bank shall have the unrestricted right at any time and from time to time, and without the consent of or notice to the Borrower to grant to one or more banks or other financial institutions (each, a "Participant") participating interests in the Bank's Commitment hereunder and/or any or all of the Loans or other Debt of the Borrower held by such Bank hereunder. Notwithstanding In the event of any such sale grant by an Owner the Bank of a participating interests interest to a Participant, (i) such Owner’s rights and obligations under this Agreement whether or not upon notice to the Borrower, the applicable Bank shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner of its obligations hereunder and the Funding Agents Borrower shall continue to deal solely and directly with such Owner Bank in connection with such Owner’s Bank's rights and obligations under this Agreementhereunder. Each Owner agrees The Bank may furnish any information concerning the Borrower in its possession from time to time to prospective Assignees and Participants, provided that any agreement between such Owner and the Bank shall require any such prospective Assignee and Participant to agree in respect writing to maintain the confidentiality of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldinformation.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
Appears in 1 contract
Sources: Loan Agreement (Firecom Inc)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees The Lender may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale under this Agreement (including, without limitation, all or a portion of its Commitment, the Loan owing to it and the Promissory Note held by an Owner of participating interests to a Participantit); provided, however, that (i) each such Owner’s assignment shall be of a constant, and not a varying percentage of all rights and obligations under this Agreement (ii) the parties to each such assignment shall execute and deliver an Assignment and Acceptance, together with the Promissory Note subject to such assignment, (iii) unless the assignment (x) is made while an Event of Default has occurred and is continuing or (y) is to an Affiliate or successor of the Lender, including without limitation Coinbase Asset Management, the prior written consent of the Borrower to such assignment is required (such consent not to be unreasonably withheld or delayed) and (iv) the Collateral shall not be transferred from the Custodian to another custodian without the prior written consent of the Borrower. Upon such execution and delivery, from and after the Effective Date of Assignment and Acceptance specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have such rights and obligations of the Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights (other than its rights under Section 2.09, Section 2.12 and Section 7.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of the Lender's rights and obligations under this Agreement, the Lender shall cease to be a party hereto). If the Lender transfers or assigns any portion or all of its rights under the Loan Documents to any other Person, any reference to the Lender in each Loan Document shall thereafter refer to the Lender and to such other Person to the extent of their respective interests, as if such other Person had been a party to this Agreement as of the date hereof up to and including the date of such transfer or assignment. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain a register for the recordation of the names and addresses of the Lenders, and the principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, at any reasonable time and from time to time upon reasonable prior notice.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.01(j) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon such assigning 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; and (v) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as the Lender.
(c) Within five (5) Business Days after its receipt of notice of an assignment hereunder and the Promissory Note(s) subject to such assignment, the Borrower at its own expense shall execute and deliver to the Lender assignee, in exchange for each surrendered Promissory Note, a new Promissory Note to such assignee in an amount equal to the outstanding amount of the Promissory Note assumed by it pursuant to such Assignment and Acceptance and, if the assigning ▇▇▇▇▇▇ has retained a portion of the Loan, a new Promissory Note to the assigning Lender in an amount equal to its portion of the Loan. Such new Promissory Note or Promissory Notes shall be in a principal amount equal to the principal amount of the surrendered Promissory Note, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Lender may sell participations at any time, without the consent of, or notice, to the Borrower, to one or more entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loan owing to it and the Promissory Note or Promissory Notes held by it); provided, however, that (i) the Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Owner the Lender shall remain solely responsible to the other parties hereto for the performance hereof and thereofof such obligations, and (iii) the TransferorLender shall remain the holder of any such Promissory Note for all purposes of this Agreement, (iv) the Servicer, the Administrative Agent, each other Owner and the Funding Agents Borrower shall continue to deal solely and directly with such Owner the Lender in connection with such Owner’s the Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner Agreement and (v) no participant under any such Participant in respect of such participating interest participation shall not restrict or condition such Owner’s have any right to agree approve any amendment or waiver of any provision of this Agreement, the Collateral Documents or any Promissory Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, supplement, waiver or modification consent would reduce the principal of, or interest on, such Promissory Note or any other amounts payable hereunder, in each case to the extent subject to such participation, or release a material portion of this Agreementthe Collateral, or postpone any date fixed for any payment of principal of, or interest on, such Promissory Note or any other amounts payable hereunder, in each case to the extent subject to such participation. The Transferor and the Servicer agree Borrower agrees that each Participant participant shall be entitled to the benefits of Article VIII as though they were Owners; providedSection 2.09, Section 2.12 and Section 7.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.09(f) (it being understood that all such amounts payable by the Transferor or the Servicer to any such Participant documentation required under Section 2.09(f) shall be limited delivered to the amounts which participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant shall not be entitled to receive any greater payment under Section 2.09 and Section 2.12 than the applicable Lender would have been payable entitled to receive with respect to the Owner selling participation sold to such participating participant, unless the sale of the participation to such participant is made with the Borrower's prior written consent or such entitlement to a greater payment results from a Change in Law after the sale of the participation takes place. The 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 of (and stated interest had on) each participant’s interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that the Lender shall have no obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such interest not been solddisclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1 of the U.S. Department of the Treasury regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the 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. This Section 7.06 shall be construed so that the Loan or any other interests under this Agreement 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 other relevant or successor provisions of the Code or such regulations).
(de) Any Owner The Lender may, in connection with any assignment or participation or Risk Transfer or proposed assignment or participation or Risk Transfer pursuant to this Section 7.06, disclose to the assignee or participant or party to a Risk Transfer or proposed assignee or participant or party to a Risk Transfer, any information relating to the Borrower furnished to the Lender by or on behalf of the Borrower.
(f) Notwithstanding any other provision set forth in this Agreement, the Lender may at any time pledge or grant create a security interest in all or any portion of its rights under this Agreement (including, without limitation, rights the Loan owing to payment of principal it and interest on its Net Investmentany Promissory Note held by it) under this Agreement and the Related Documents including any pledge or assignment to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation Bank or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretocentral banking authority.
Appears in 1 contract
Assignments and Participations. (a) Each Funding AgentAny Lender may, each with the written consent of Agent and Borrower (provided that no written consent of Agent or Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no consent of the Conduit Purchasers Borrower shall be required if a Default or Event of Default shall have occurred and be continuing), assign and delegate to one or more assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole a minimum amount of $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 (iii) the assignor Lender or in part, its interest Assignee has paid to Agent for Agent's separate account a processing fee in the Transferred Assets amount of $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 assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall affect a novation between Borrower and the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(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: (1) 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, (2) 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 their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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, (5) 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 (6) 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 each Assignee's making its processing fee payment, if applicable, under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 Owner may, in the ordinary course of its business and in accordance with applicable law, Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such sale by an Owner of participating interests by a Lender to a Participantan Eligible Transferee); provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereof, and of such obligations; (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents; (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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, or (E) change the amount or due dates of scheduled principal repayments or prepayments or 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldLenders among themselves.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedU.S. Treasury Regulation 31 CFR Section203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
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Assignments and Participations. (a) Each Funding AgentLender may sell, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may transfer, negotiate or assign without any prior written consent, either in whole or in part, part to one or more Eligible Lenders its interest in the Transferred Assets and rights and obligations hereunder and under the Notes and the other Loan Documents without the prior consent of the Borrower (subject to clause (y) below) but, except as otherwise provided in Section 10.2(d), with the consent, not to be unreasonably withheld, of the Agent, and the prior written consent of the Board (such consent, in the case of an assignment to an Affiliate of any Lender that is an Eligible Lender, not to be unreasonably withheld) and, in the case of an assignment in respect of the Tranche B Note, so long as the Supplemental Guarantor has not failed to make a payment due by it under the Supplemental Guarantee, the prior written consent of the Supplemental Guarantor (such consent not to be unreasonably withheld or delayed); provided, that (i) the assigning Lender shall give prompt written notice to the Agent and the Board of the terms of and the parties to any Permitted Transferee. To effectuate such assignment, (ii) the proposed assignee shall provide to the Agent and the Board all documentation and certificates as required by the Agent and the Board to confirm to the Agent's and the Board's satisfaction that such proposed assignee is an Eligible Lender, and (iii) the Borrower will not be obligated to pay any greater amount under Section 2.10(c) or Section 2.12(a) (in respect of increased costs or Indemnified Taxes imposed pursuant to applicable law in effect on the date of such assignment) to the assignee than the Borrower is then obligated to pay to the assigning Lender under such Sections (or, with respect to an assignment hereunderof the Tranche B Note only, both the Supplemental Guarantor will not be obligated to pay any greater amount under Clause 3(a) of the Supplemental Guarantee (in respect of Indemnified Taxes imposed pursuant to applicable law in effect on the date of such assignment) to the assignee and than the assignor (includingSupplemental Guarantor is then obligated to pay to the Tranche B Lender under such Clause); provided, as appropriatehowever, that the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will consent of the Board shall not be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following for any assignment which occurs after the Board has been reimbursed in accordance with full for all payments under the foregoing criteria, Board Guarantee or the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto Board Guarantee shall be deemed to be amended accordingly)have terminated. Notwithstanding the foregoing, (x) the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the Primary Tranche A Lender may assign its rights and obligations hereunder owned by it) and under the Tranche A Note to its Conduit Support Providers the Alternate Tranche A Lender without the prior consent of any party to this Agreement or any other Loan Document, and (iiy) regardless of whether a Conduit Support Provider to assignDefault or Event of Default exists, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed), no right, obligation or interest hereunder or under any Note or other Loan Document may be sold, transferred, negotiated or assigned to an airline, a commercial aircraft operator, an air freight forwarder or an entity principally engaged in the business of parcel transport by air (or an Affiliate of any such Person). The Borrower and the Board hereby consent to the assignment of Tranche B of the Loan and the Tranche B Note to International Lease Finance Corporation and agree that no further consent shall be required for any assignment of Tranche B to any such Person, provided that International Lease Finance Corporation is an Eligible Lender at the time of any such assignment.
(b) The parties to each assignment shall execute and deliver to the Agent, for its acceptance and recording, an Assignment and Acceptance, and the assignee, if a Non-U.S. Person, shall deliver to the Borrower, the Agent and the Supplemental Guarantor (if the assignor is the Tranche B Lender) on or prior to the date of the assignment, two completed copies of either IRS Form W-8BEN or W-8ECI or other applicable form, certificate or document required to satisfy the requirements of Section 2.12. Upon such execution, delivery and acceptance and the receipt by the Agent of an assignment fee in the amount of $10,000 (except that so long as Citibank, N.A. is the Agent, no fee shall be payable in connection with any assignment to any affiliate of Citibank, N.A. or by the Supplemental Guarantor upon an assignment of Tranche B of the Loan to it), the Agent shall record such Assignment and Acceptance and from and after the effective date specified in such Assignment and Acceptance (i) the assignee thereunder of all Funding Agentsor any portion of the Loan shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except those which survive the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).
(c) Any Owner Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the 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, (iii) give prompt notice thereof to the Borrower and (iv) give prompt written notice of the terms of and parties to any such assignment to the Board, the Loan Administrator and the Collateral Agent.
(d) In addition to the other assignment rights provided in this Section 10.2, each Lender may assign, without the prior consent of the Borrower, the Agent or the Board, as collateral or otherwise, any of its rights under this Agreement to any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board, provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(e) Each Lender may, without the prior consent of the Borrower or any other Person, sell participations, to the extent permitted by the Regulations and Section 5.04(b) of the Board Guarantee, in the ordinary course of its business and in accordance with applicable law, at any time sell or to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding hereunder and under any Note and the other Loan Documents, except that in the case of a sale of a participation in respect of the Tranche B Note, so long as the Supplemental Guarantor has not failed to make a payment due by it under the Supplemental Guarantee, the prior written consent of the Supplemental Guarantor shall be required (such sale by an Owner of participating interests consent not to a Participantbe unreasonably withheld or delayed); provided, that (i) such Owner’s rights and obligations under this Agreement shall remain unchangedneither any Note nor the Board Guarantee is assigned, conveyed, sold or transferred in whole or in part in connection with any participation, (ii) such Owner shall remain solely responsible for the performance hereof Board's ability to assert any and thereofall defenses available to it under the Board Guarantee and the law is not adversely affected, and (iii) the TransferorBorrower will not be obligated to pay any greater amount under Section 2.10(c) or Section 2.12(a) (in respect of increased costs or Indemnified Taxes imposed pursuant to applicable law in effect on the date of such participation) to such participant than the Borrower is then obligated to pay to any selling Lender under such Sections (or, with respect to a sale of a participation in respect of the Tranche B Note only, the ServicerSupplemental Guarantor will not be obligated to pay any greater amount under Clause 3(a) of the Supplemental Guarantee (in respect of Indemnified Taxes imposed pursuant to applicable law in effect on the date of such participation) to such participant than the Supplemental Guarantor is then obligated to pay to the selling Lender under such Clause). In the event of the sale of any participation by any Lender, except as otherwise expressly provided herein, (A) such Lender's obligations under the Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties for the performance of such obligations, (C) such Lender shall remain the holder of such Obligations for all purposes of this Agreement, (D) the Agent, the Administrative Agent, each other Owner Board and the Funding Agents other Lenders shall continue to deal solely and directly with such Owner Lender in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner , and any such Participant in respect (E) each holder of such participating interest a participation, if a Non-U.S. Person, shall not restrict deliver to the Borrower, the Agent, the Supplemental Guarantor (if the transferor is the Tranche B Lender) and such Lender, on or condition prior to the date of the sale of the participation, two completed copies of either IRS Form W-8BEN or W-8ECI or other applicable form, certificate or document required to satisfy the requirements of Section 2.12. Any holder of such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall a participation will be entitled to the benefits of Article VIII as though they were Owners; providedSection 2.10(c), that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited Section 2.10(f), Section 2.11 and Section 2.12 to the amounts which would have been payable same extent as if such Person were a Lender (but subject to the Owner selling such participating interest had such interest not been soldrestrictions of Section 2.12(j)).
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.
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Assignments and Participations. (a) Each Funding Agent, Borrower and each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer Lender hereby agree and consent to the complete or partial assignment by the applicable Owners each CP Lender of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective of its rights under, interest in, title to and obligations under this Agreement and (i) to its Liquidity Banks pursuant to a Liquidity Agreement, (ii) (A) to any other issuer of commercial paper notes sponsored or administered by the Related Documents Managing Agent of such CP Lender’s Lender Group (or, in the case of the Lender Group for which KeyBank National Association acts as Managing Agent, to any other issuer of commercial paper notes sponsored or administered by such Managing Agent or for which Liberty Hampshire Company, LLC provides services) or (B) to any Lender or any Affiliate of a Lender hereunder, or (iii) to any other Person; provided that, prior to the respective collateral agent or trustee T-Mobile occurrence of an Early Termination Event, such CP Lender may not make any such assignment pursuant to this clause (EIPiii), except in the event that the circumstances described in Section 11.1(c) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper programoccur, in each case without the execution consent of the Borrower (which consent shall not be unreasonably withheld or delayed). Upon such assignment, such CP Lender shall be released from its obligations so assigned. Further, Borrower and delivery each Committed Lender hereby agree that any assignee of an Assignment any CP Lender of this Agreement or all or any of the outstanding Advances of such CP Lender shall have all of the rights and Assumption benefits under this Agreement as if the term “CP Lender” explicitly referred to such party, and no such assignment shall in any way impair the rights and benefits of such CP Lender hereunder. Neither Borrower nor the Servicer shall have the right to assign its rights or obligations under this Agreement.
(b) None Any Committed Lender may at any time and from time to time assign to one or more Persons (“Purchasing Committed Lenders”) all or any part of its rights and obligations under this Agreement pursuant to an assignment agreement, substantially in the form set forth in Exhibit C hereto (the “Assignment and Acceptance”) executed by such Purchasing Committed Lender and such selling Committed Lender. The consent of the TransferorCP Lender or CP Lenders, ▇▇▇▇▇ if any, in such Committed Lender’s Lender Group shall be required prior to the effectiveness of any such assignment. In addition, so long as no Early Termination Event or Unmatured Termination Event has occurred and is continuing at such time, the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required prior to the effectiveness of any such assignment. Each assignee of a Committed Lender must be an Eligible Assignee and must agree to deliver to the Administrative Agent, promptly following any request therefor by the Managing Agent for its Lender Group or the Servicer may assign affected CP Lender or CP Lenders, if any, an enforceability opinion in form and substance satisfactory to such Managing Agent and such CP Lender or CP Lenders, if any. Upon delivery of the executed Assignment and Acceptance to the Administrative Agent, such selling Committed Lender shall be released from its rights or obligations hereunder to the extent of such assignment. Thereafter the Purchasing Committed Lender shall for all purposes be a Committed Lender party to this Agreement and shall have all the rights and obligations of a Committed Lender under this Agreement to the same extent as if it were an original party hereto and no further consent or any interest herein without action by Borrower, the prior written consent of all Funding AgentsLenders or the Administrative Agent shall be required.
(c) Each of the Committed Lenders agrees that in the event that it shall cease to have the Required Ratings (an “Affected Committed Lender”), such Affected Committed Lender shall be obliged, at the request of the CP Lenders, if any, in such Committed Lender’s Lender Group or the applicable Managing Agent, to assign all of its rights and obligations hereunder to (x) another Committed Lender or (y) another funding entity nominated by such Managing Agent and acceptable to such affected CP Lenders, and willing to participate in this Agreement through the Termination Date in the place of such Affected Committed Lender; provided that the Affected Committed Lender receives payment in full, pursuant to an Assignment Agreement, of an amount equal to such Committed Lender’s Pro Rata Share of the outstanding Advances and Interest owing to the Committed Lenders and all accrued but unpaid fees and other costs and expenses payable in respect of its Pro Rata Share of the outstanding Advances of the Committed Lenders.
(d) By executing and delivering an Assignment and Acceptance, the Purchasing Committed Lender thereunder and the selling Committed Lender 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 selling Committed Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such selling Committed Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the related CP Lender, if any, or the performance or observance by such CP Lender of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such Purchasing Committed Lender confirms that it has received a copy of this Agreement, together with copies of such financial statements 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 Purchasing Committed Lender will, independently and without reliance upon the Administrative Agent or any Managing Agent, the selling Committed Lender or any other Committed 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 Purchasing Committed Lender and such selling Committed Lender confirm that such Purchasing Committed Lender is an Eligible Assignee; (vi) such Purchasing Committed Lender appoints and authorizes each of the Administrative Agent and the applicable Managing Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such Purchasing Committed Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Committed Lender.
(e) The Administrative Agent shall maintain at its address referred to herein 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 Committed Lenders and the Commitment of, and principal amount of, each Advance owned by each Committed 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 Lenders, the Borrower and the Managing Agents may treat each Person whose name is recorded in the Register as a Committed Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Lenders, any Managing Agent or the Borrower at any reasonable time and from time to time upon reasonable prior notice.
(f) Subject to the provisions of this Section 11.1, upon their receipt of an Assignment and Acceptance executed by an selling Committed Lender and an Purchasing Committed Lender, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, accept such Assignment and Acceptance, and the Administrative Agent shall then (i) record the information contained therein in the Register and (ii) give prompt notice thereof to each Managing Agent.
(g) Any Owner Committed Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, each a “Participant”) participating interests in all its Pro-Rata Share of the Advances of the Committed Lenders or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect interest of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.Committed Lender
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Assignments and Participations. (a) Each Funding AgentAny Non-Delinquent Lender may, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner mayAgent, in the ordinary course of its business and in accordance with applicable lawwhich shall not be unreasonably withheld or delayed, at any time sell or times and without Borrower’s consent, grant any Participation in its Pro Rata Share of the Loan to one or more Persons who is a Permitted Transferee not an Affiliate of Borrower or Guarantor (each, each a “Participant”) participating interests in all or a portion ). In the event of its rights and obligations hereunder. Notwithstanding any such sale grant by an Owner a Lender of participating interests a Participation to a Participant, (i) such Owner’s rights and obligations under this Agreement Lender shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereofof its obligations hereunder, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Agent shall continue to deal solely and directly with such Owner Lender in connection with such OwnerLender’s rights and obligations under this Agreementhereunder, and Agent shall have no obligation to communicate with, give any notice to, make any payment to or take any direction from, any Participant. Each Owner Lender agrees for the benefit of Borrower that any agreement between pursuant to which any Lender may grant a Participation shall provide that such Owner Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder and under any such Participant in respect of such participating interest shall not restrict or condition such Owner’s other Loan Document, including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided, however, that such participation agreement may provide that such Lender will not agree to any amendmentmodification, supplement, amendment or waiver or modification described in clauses (i) through (vii) of this Agreement. The Transferor and Section 9.16 without the Servicer agree that each Participant shall be entitled to consent of the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldParticipant.
(db) Upon request by Borrower, each Lender agrees to provide Borrower with notice of all Participations sold by such Lender, which shall acknowledge and represent compliance with the above terms of this Section 9.8. Borrower agrees to provide all assistance reasonably requested by a Lender to enable such Lender to sell Participations as aforesaid, or make assignments of its interest in the Loan as hereinafter provided in this Section.
(c) Any Owner may Non-Delinquent Lender may, with the prior written consent of Agent, which shall not be unreasonably withheld or delayed, at any time pledge or grant times and without Borrower’s consent, make a security interest Loan Transfer to an Eligible Lender not an Affiliate of Borrower or Guarantor (such assignee, an “Assignee”) subject to the following conditions: (i) the aggregate amount of the Individual Loan Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Agreement with respect to such assignment) shall not cause or otherwise result in said assigning Lender’s remaining unassigned Individual Loan Commitment to be less than $5,000,000; (ii) the Assignee shall execute and deliver to Agent, for its approval, acceptance and recording in a register maintained by Agent, an Assignment and Acceptance Agreement, together with a processing and recordation fee of $5,000 for Agent’s own account; (iii) the principal amount of any assigned Individual Loan Commitment shall be not less than $5,000,000; (iv) each such Loan Transfer shall be to an Eligible Lender; and (v) the Assignee and/or the assigning Lender shall pay to Agent all of Agent’s reasonable costs and expenses incurred in connection with such Loan Transfer. Upon such execution, delivery, approval, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance Agreement, (1) Assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Lender hereunder and (2) the assigning Lender thereunder shall to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under this Agreement arising from and after the date of such Assignment and Acceptance Agreement. Notwithstanding anything contained in this Agreement to the contrary, ORIX Capital Markets, LLC, a Delaware limited liability company, as Lender and not Agent (“ORIX”), shall have the right, at its sole option, to cause Varian Medical Systems International AG, a Swiss corporation, and its successors, assigns and participants in its capacity as Lender (“Varian”), to make a Loan Transfer to ORIX (or its assignee or designee), at any time and from time to time, of all or any portion of Varian’s Individual Loan Commitment (whether funded or not). In the event ORIX elects to exercise its rights right to cause Varian to make a Loan Transfer to ORIX (or its assignee or designee), ORIX shall deliver written notice to Varian (with a copy to Agent) setting forth the amount of Varian’s Individual Loan Commitment that ORIX (or its assignee or designee) desires to purchase (a “Transfer Notice”), and in such event, Varian, as the assigning Lender, shall sell to ORIX (or its assignee or designee), as Assignee, that portion of Varian’s Individual Loan Commitment set forth in such Transfer Notice. The purchase price to be paid by ORIX (or its assignee or designee) to Varian for any such Loan Transfer shall be no less than that portion of the then outstanding principal amount of Varian’s Individual Loan Commitment set forth in the Transfer Notice and all interest accrued thereon prior to the date of the completion of the Loan Transfer, and shall exclude all fees (including, without limitation, the Exit Fee, the Amortization Conversion Fee and the Minimum Lookback Amount), costs, charges and other amounts payable after the completion of the Loan Transfer, as further described in the Assignment and Acceptance Agreement, which ORIX (or its assignee or designee) and Varian agree to execute within fifteen (15) Business Days of Varian’s receipt of ORIX’s written election notice. No later than one (1) Business Day after ORIX (or its assignee or designee) receives an originally executed counterpart of such Assignment and Acceptance Agreement, ORIX (or its assignee or designee) shall pay to Varian (in immediately available U.S. funds) the purchase price and such other sums as set forth in such Assignment and Acceptance Agreement. In addition to the foregoing, upon any exercise by ORIX of its rights contained in this paragraph, ORIX and Varian agree to payment comply with and perform all of principal the applicable covenants and interest agreements set forth in this Section 9.8. If Varian fails to execute the Assignment and Acceptance Agreement as set forth above, ORIX may exercise any remedies which ORIX may have as a result of a breach of the obligations contained in this paragraph. Varian and ORIX shall reasonably cooperate with each other, and shall do all things reasonably necessary or desirable, to affect the intent of this paragraph.
(d) By executing and delivering an Assignment and Acceptance Agreement, 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 Agreement, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto or the attachment, perfection or priority of any Lien granted by Borrower to Agent or any Lender in the Collateral; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or Guarantor or the performance or observance by Borrower or Guarantor 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 all Loan Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance Agreement; (iv) such Assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such Assignee appoints and authorizes Agent to take such action as agent on its Net Investmentbehalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers, including the discretionary rights and incidental power, as are reasonably incidental thereto; and (vi) under such Assignee agrees that it will be bound by and will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the Related other Loan Documents are required to secure obligations be performed by it as a Lender.
(e) Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender and Assignee, Agent shall, if such Owner Assignment and Acceptance Agreement has been properly completed and is in substantially the form of Exhibit F attached hereto, accept such Assignment and Acceptance Agreement and give prompt notice thereof to a Federal Reserve BankBorrower. Until such time as Agent shall have accepted any such Assignment and Acceptance Agreement, Agent shall have no obligation to communicate with or accept or take into account any communication from any Assignee and Agent shall continue to deal solely and directly with any such assigning Lender in connection with the U.S. TreasuryLoan, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without other Loan Documents.
(f) In connection with the execution and delivery of an each Assignment and Assumption Acceptance Agreement as provided for in this Section 9.8, the assigning Lender shall deliver to Agent the superseded Note or Notes and Agent shall deliver to Borrower for execution by Borrower, substitute notes, in the form of Exhibit E, in order to reflect the appropriate Individual Loan Commitment of the assigning Lender and Assignee after giving effect to such Assignment and Acceptance Agreement. Borrower hereby covenants and agrees to promptly execute said new Notes and to promptly return them to Agent so that Agent may deliver said new Notes to the appropriate Lenders; provided, however, Agent shall not deliver said new Notes unless and until the assigning Lender shall have delivered the superseded Note to Agent. The assigning Lender hereby appoints Agent as its attorney-in-fact (coupled with an interest) for the sole purpose of canceling the superseded Note and the assigning Lender hereby covenants and agrees that Agent shall not be liable for any action taken or omitted to be taken by Agent in connection therewith, unless caused by Agent’s own gross negligence or willful misconduct. Upon Borrower’s request, Agent shall stamp each superseded Note “SUPERSEDED” and shall attach each said superseded Note to, and Sections 9.7(aeach said superseded Note shall become a part of, the new Notes and Agent shall deliver said new Notes to the appropriate Lenders. All such new Notes shall constitute “Notes” and the obligations evidenced by such substitute notes shall constitute obligations secured by the Mortgage. In connection with Borrower’s execution of any such new Notes, Borrower shall deliver to Agent such evidence of the due authorization, execution and delivery of the substitute notes and any related documents as Agent and/or Assignee may reasonably request. Assignee shall, prior to the first date on which interest or fees are payable hereunder for its account, deliver to Borrower and Agent certification as to exemption from deduction, backup withholding and withholding of any United States federal income taxes in accordance with Section 10.13 and otherwise furnish to Borrower and Agent such forms, certifications, statements and other documents as either of them may reasonably request from time to time to evidence that such Assignee is entitled to receive any payments to be made to it hereunder without the withholding of any tax or increased liability for any Additional Costs.
(g) Borrower, Agent and 9.7(cLenders shall execute such modifications to the Loan Documents as shall, in the reasonable judgment of Agent, be necessary or desirable in connection with assignments in accordance with the foregoing provisions of this Section.
(h) shall not apply Borrower recognizes that in connection with a Lender’s selling of Participations or making of assignments, any or all documentation, financial statements, appraisals and other data, or copies thereof, relevant to Borrower, Guarantor or the Loan may be exhibited to and retained by any such Participant or Assignee or prospective Participant or Assignee. A Lender’s delivery of any financial statements and appraisals to any such pledge Participant or grant of Assignee or prospective Participant or Assignee shall be done on a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretoconfidential basis.
Appears in 1 contract
Sources: Loan and Security Agreement (Varian Medical Systems Inc)
Assignments and Participations. (a) Each Funding AgentAt any time after the Closing Date each Lender may, each with the prior consent of the Conduit Purchasers Agent and the Committed Purchasers and their respective assignees may Borrower, which consent shall not be unreasonably withheld, assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in banks or financial institutions all or a portion of its rights and obligations hereunderunder this Agreement (including, without limitation, all or a portion of the 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 (including Loans and Participations) under this Agreement, (ii) the assigning Lender and the assignee and the Agent shall have executed and delivered to the Borrower an Assignment and Acceptance and the Borrower hereby agrees to execute replacement Notes to give effect to the assignment if the Borrower shall have consented to such assignment, (iii) the minimum Revolving Credit Commitment which shall be assigned is $10,000,000 (together with which the assigning Lender's applicable portion of Participations and the Letter of Credit Commitment shall also be assigned) and (iv) such assignee shall have an office located in the United States, provided, that an assignment by NationsBank shall not include any portion of the Swing Line or the obligation to issue Letters of Credit. Notwithstanding Upon such execution, delivery, approval and acceptance, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under such Note have been assigned or negotiated to it pursuant to such Assignment and Acceptance have the rights and obligations of a Lender hereunder and a holder of such Note and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder or under such Note have been assigned or negotiated by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement, provided that the assignor shall not be relieved from any liability arising prior to the effectiveness of the assumption thereof by the assignee. No assignee shall have the right to further assign its rights and obligations pursuant to this Section 12.
01. Any Lender who makes an assignment shall pay to the Agent a one-time administrative fee of $5,000.00 which fee shall not be reimbursed by Borrower.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) the assignment made under such sale Assignment and Acceptance is made under such Assignment and Acceptance without recourse; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of its obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements delivered pursuant to Section 7.02(b) 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 will, independently and 61 without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Note and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender and a holder of such Note.
(c) The Agent shall maintain at its address referred to herein a copy of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an Owner assigning Lender, the Agent shall give prompt notice thereof to Borrower.
(e) Each Lender may sell participations to one or more banks or other financial institutions as to all or a portion of participating interests to a Participantits rights under this Agreement; provided, that (i) such Owner’s rights and Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner Lender shall remain solely responsible to the other parties hereto for the performance hereof of such obligations, (iii) such Lender shall remain the holder of any Note issued to it for the purpose of this Agreement, (iv) such participations shall be in a minimum amount of $5,000,000 and thereofshall include an allocable portion of such Lender's Participation, and (iiiv) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner Agent and the Funding Agents other Lenders shall continue to deal solely and directly with such Owner Lender in connection with such Owner’s Lender's rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.
(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and with regard to any and all payments to be made under this Agreement; provided, that the Related Documents participation agreement between a Lender and its participants may provide that such Lender will obtain the approval of such participant prior to such Lender's agreeing to any amendment or waiver of any provisions of this Agreement which would (A) extend the maturity of the Note, (B) reduce the interest rate hereunder, or (C) increase the Revolving Credit Commitment of the Lender granting the participation other than as permitted by Section 2.11, and (vi) the sale of any such participations which require Borrower to file a registration statement with the United States Securities and Exchange Commission or under the securities regulations or laws of any state shall not be permitted.
(f) No Lender may assign any rights under this Agreement or the Notes or sell participations therein except in accordance with this Section 12.01.
(g) No assignee Lender shall be entitled to receive any greater payment under Article IV than the assignor Lender would have been entitled to receive in respect of the rights assigned.
(h) Any Lender may assign all or part of its rights and obligations under this Agreement to any bank under common control or ownership with such Lender or to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case Board without the execution and delivery consent of an Assignment and Assumption Agreementthe Borrower or the Agent subject, and Sections 9.7(a) and 9.7(c) shall not apply however, to any such pledge or grant all the other provisions of a security interest described in this clause (eSection 12.01(a); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.. 62
Appears in 1 contract
Sources: Revolving Credit and Reimbursement Agreement (Willcox & Gibbs Inc)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee and no notice to Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of a Lender or a fund or account managed by a Lender), assign and delegate to one or more assignees (each an "Assignee") all, or any 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 of $5,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender or to a fund 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 Assignment and Acceptance in form and substance satisfactory to Agent, each and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $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 (A) such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the Conduit Purchasers business or loan portfolio of Ableco or an Affiliate of Ableco or (B) the assignor is Ableco or an Affiliate of Ableco and the Committed Purchasers assignee is Ableco, an Affiliate (other than individual(s)) of Ableco, or a fund, money market account, investment account or other account managed by Ableco or an Affiliate of Ableco.
(b) From and their respective assignees may assign without any prior written consentafter the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and payment (if applicable) of the above-referenced processing fee, in whole or in part(i) the Assignee thereunder shall be a party hereto and, its interest in to the Transferred Assets and extent that rights and obligations hereunder have been assigned to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunderhereunder 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 11.3 hereof) owned by such Conduit Support Provider. The Transferor and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto, (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, (4) 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 accordance taking or not taking action under this Agreement, (5) 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 applicable lawsuch powers as are reasonably incidental thereto, and (6) 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 each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of 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 sell to one or more commercial banks, financial institutions, or other Persons who is not Affiliates of such Lender (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) such Owner’s 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) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the TransferorBorrower, the Servicer, the Administrative Agent, each other Owner and the Funding Agents Lenders shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any agreement between 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 Owner and 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 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) 100 postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, or (F) subordinate the Liens of Agent for the benefit of the Lender Group on all or substantially all of the Collateral to the Liens of any other creditor of Borrower, 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 such its participating interest shall not restrict or condition such Owner’s right in amounts owing under this Agreement to agree the same extent as if the amount of its participating interest were owing directly to any amendment, supplement, waiver or modification of it as a Lender under this Agreement. The Transferor rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and the Servicer agree that each no Participant shall be entitled have any rights under this Agreement or the other Loan Documents or any direct rights as to the benefits other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of Article VIII as though they were Owners; provided, that all such amounts payable the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this Section 14.1(e) are solely for the Servicer to any benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business, provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 16.17(d).
(g) Any Owner other provision in this Agreement notwithstanding, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, the U.S. Treasury, Bank in accordance with Regulation A of the Federal Deposit Insurance Corporation Reserve Bank or the central bank of any nation or other political body in which it is domiciled or locatedUnited States Treasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Assignments and Participations. (a) Each Funding Any Lender may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (each an "Assignee") all, or any ratable part, of the Conduit Purchasers Obligations, the Commitments, and the Committed Purchasers other rights and their respective assignees may assign without any prior written consentobligations of such Lender hereunder and under the other Loan Documents, in whole or a minimum amount of $5,000,000; PROVIDED, HOWEVER, that Borrower and Agent may continue to deal solely and directly with such Lender in partconnection 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 interest Assignee shall have delivered to Borrower and Agent a fully executed 57 Assignment and Acceptance ("Assignment and Acceptance") in the Transferred Assets form of EXHIBIT A-1; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $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 assignor Lender that it has received a fully executed Assignment and Acceptance and payment of the 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 any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required it pursuant to execute and deliver to the Transferor, the Servicer and the Administrative Agent an such Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteriaAcceptance, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (and have the rights and obligations hereunder owned by it) to its Conduit Support Providers of a Lender under the Loan Documents, and (ii) a Conduit Support Provider the assignor Lender shall, to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the extent that rights and obligations hereunder) owned hereunder and under the other Loan Documents have been assigned by it pursuant to such Conduit Support Provider. The Transferor Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the Servicer hereby agree case of an Assignment and consent to the complete assignment by the applicable Owners of Acceptance covering all of, or the grant remaining portion of a security interest in (or pledge of) all or any portion of, their respective an assigning Lender's rights under, interest in, title to and obligations under this Agreement and the Related Documents 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 respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding AgentsAssignee.
(c) Any Owner mayBy 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: (1) 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 ordinary course execution, legality, validity, enforceability, genuineness, sufficiency, or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) 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 business obligations under this Agreement or any other Loan Document furnished pursuant hereto; (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; (4) 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; (5) such Assignee appoints and authorizes Agent to take such action as agent on its behalf 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 (6) such Assignee agrees that it will perform in accordance with applicable lawtheir 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 each Assignee's making its processing fee payment under the 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 and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such 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 Persons who is (a Permitted Transferee (each, a “"Participant”") participating interests in all or a portion of its the Obligations, the Commitment, and the other rights and obligations hereunder. Notwithstanding any such sale by an Owner interests of participating interests to a Participantthat Lender (the "Originating Lender") hereunder and under the other Loan Documents; PROVIDED, HOWEVER, that (i) such Owner’s rights and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) such Owner the Originating Lender shall remain solely responsible for the performance hereof and thereofof such obligations, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower and the Funding Agents Agent shall continue to deal solely and directly with such Owner the Originating Lender in connection with such Owner’s the Originating Lender's rights and obligations under this Agreement. Each Owner agrees that Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any agreement between 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 Owner and 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 a material portion of the Collateral (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 hereunder in which such Participant is participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums in respect of the Obligations hereunder in which such participating interest Participant is participating; and (v) all amounts payable by Borrower hereunder shall be determined as if such Originating Lender had not restrict sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or condition such Owner’s right to agree to any amendmentshall have been declared or shall have become due and payable upon the occurrence of an Event of Default, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the benefits same extent as if the amount of Article VIII its participating interest were owing directly to it as though they were Ownersa Lender under this Agreement; providedPROVIDED, HOWEVER, that all no Participant may exercise any such amounts payable right of setoff without the notice to and consent of Agent. The rights of any Participant shall only be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Advances or the Letters of Credit. No Participant shall have the right to participate directly in the making of decisions by the Transferor or Lenders among themselves. The provisions of this SECTION 15.1(e) are solely for the Servicer to benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been soldprovisions.
(df) Any Owner In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or grant create a security interest in in, or pledge, all or any portion of its rights (including, without limitation, rights to payment of principal under and interest on its Net Investment) under in this Agreement and the Related Documents to secure obligations in favor of such Owner to a any Federal Reserve Bank, Bank in accordance with 59 Regulation A of the FRB or U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or locatedTreasury Regulation 31 CFR Section 203.14, and any Conduit Purchaser such Federal Reserve Bank may assign all of, enforce such pledge or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations manner permitted under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretolaw.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and The rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the Transferred Assets (parties under the Loan Documents and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer under any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment Notes shall not be assigned by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee T-Mobile (EIP) Third A&R RPAA under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.
(b) None of the Transferor, ▇▇▇▇▇ or the Servicer may assign its rights or obligations hereunder or any interest herein Lender without the prior written consent of all Funding Agentsthe Borrower Agent and shall not be assigned by any Borrower without the prior written consent of the Lender; provided, that the Lender shall be permitted to assign such rights and obligations without the consent of the Borrower Agent in the case of an assignment by the Lender to (x) any Approved Assignee, which is a direct or indirect subsidiary of Bank of America Corporation or (y) any other Approved Assignee during the continuance of a Specified Event of Default; provided, further, that the parties to each such assignment shall execute and deliver an assignment and acceptance, in form and substance acceptable to the Borrower Agent (an "Assignment and Acceptance"), along with replacement Notes executed and delivered by the Borrowers and such other documents as the Borrower Agent or the Lender shall consider reasonably necessary to effect fully such assignment and/or confirm the status of such assignee as an Approved Assignee.
(b) Subject to the satisfaction of the conditions set forth in (a) above, upon such execution and delivery, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of the Lender hereunder, and (ii) the Lender assignor thereunder shall, to the extent that any rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement.
(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time The Lender may sell participations to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in or to all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests under this Agreement with written notification to the Borrower Agent within a Participantreasonable time thereafter; provided, however, that (i) such Owner’s rights and obligations under this Agreement after giving effect to any participations sold, the Lender shall remain unchangedcontinue to hold an interest in the Maximum Credit and/or the outstanding Loans in an amount not less than the BOA Hold Amount, (ii) such Owner the Lender shall remain solely responsible act as exclusive agent for all participants in any dealings with the performance hereof Borrower Agent and thereofthe Borrowers in connection with this Agreement and the other Loan Documents, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner Borrower Agent and the Funding Agents Borrowers shall continue not be obligated to deal solely and directly with such Owner any Person other than the Lender in connection with such Owner’s this Agreement and the other Loan Documents and the Lender shall maintain unilateral control over all discretionary determinations to be made thereunder, including, without limitation, determinations as to eligibility and purchase of Eligible Assets, the Market Value thereof, the granting of waivers of noncompliance with the terms of the Loan Documents, the granting of extensions of the Termination Date and/or increases in the Maximum Credit and the exercise of rights and obligations under this Agreement. Each Owner agrees remedies upon the occurrence and during the continuation of an Event of Default, (iv) the Lender shall pay or reimburse the Borrower Agent or the Borrowers, as applicable, or any other Person for any fees, costs, expenses or other amounts that would not have been incurred had no participation been sold hereunder and (v) at any agreement between such Owner time prior to the occurrence and any such Participant in respect continuance of such participating interest a Specified Event of Default, the Lender shall not restrict or condition sell (unless consented to by the Borrower Agent (such Owner’s right consent not to agree be unreasonably withheld)), any participation to any amendment, supplement, waiver or modification non-financial institutions engaged in the business of purchasing B notes and/or mezzanine loans (it being understood that for the purposes of this Agreement. The Transferor and the Servicer agree that each Participant clause (c)(v) of Section 10.05, any insurance company, bank or mutual fund shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been solddeemed a financial institution hereunder).
(d) Any Owner The Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.05, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to the Borrowers or any Subsidiary, any Eligible Asset, any Underlying Asset or to any aspect of the Loans that has been furnished to the Lender by or on behalf of the Borrowers or any Subsidiary.
(e) The Lender may at any time pledge or grant create a security interest in all or any portion of its rights under this Agreement (including, without limitation, rights the Loans owing to payment of principal and interest on its Net Investment) under this Agreement it and the Related Documents to secure obligations Note held by it) in favor of any other Person (including the Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System issued by such Owner to a Federal Reserve Bank, ). No such assignment shall release the U.S. Treasury, the Federal Deposit Insurance Corporation assigning Lender from its obligations hereunder.
(f) The Lender may at any time disclose any information concerning Anthracite or the central bank of any nation or other political body in which it is domiciled or located, Borrower (and any Conduit Purchaser may assign all ofof their respective affiliates) to any assignee of or participant in, or the grant any prospective assignee of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest participant in, title to any of the rights and obligations under this Agreement Agreement; provided, that the Lender and the Related Documents applicable prospective assignee or participant shall, prior to such disclosure, execute a confidentiality agreement substantially in the respective collateral agent or trustee under form used by the applicable Conduit Purchaser’s Commercial Paper program, Lender in each case without the execution and delivery its ordinary course of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party heretobusiness.
Appears in 1 contract