Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances. (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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16. (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto. (e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. (f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses. (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law. (h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. (i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 2 contracts
Sources: Credit Agreement (MDC Partners Inc), Credit Agreement (MDC Partners Inc)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received written notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party, or Affiliate of a Loan Party, shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 2 contracts
Sources: Credit Agreement (Oclaro, Inc.), Credit Agreement (Oclaro, Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) US Administrative Borrower; provided, delayed or conditioned, and that no consent of US Administrative Borrower shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender or Loan Party, an Affiliate of a Loan Party or any Permitted Holder Affiliated Entity,
(other than individualsC) no assignment may be made to a Disqualified Institution unless a Specified Event of Default of the type referred to in clause (a), (d) or (e) of a Lender, any Lender may assign the definition thereof has occurred and delegate to one or more assignees is continuing,
(each, an "Assignee"D) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(E) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(F) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiG) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and
(H) the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”). Notwithstanding anything contained herein to the contrary, no assignment may be made unless after giving effect thereto (i) the Pro Rata Share of the US Revolver Commitment of a Lender and its Affiliates shall equal the Pro Rata Share of the UK Revolver Commitments of such Lender and its Affiliates and (ivii) any assignment the Pro Rata Share of any portion the UK Revolver Commitments of a Lender's Lender and its Affiliates shall equal the Pro Rata Share of the US Revolver Commitment shall be accompanied by proportionate assignment Commitments of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Lender and of such Lender's Sterling Advancesits Affiliates.
(b) From and after the date that Agent notifies receives 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, subject to Section 13.1(h), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Permitted Holder Affiliated Entity, and (vvii) except as provided below, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents Documents, or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Holdings and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. US Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolving Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of the Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than individuals) of a Lender (provided, that, in each case, or a Related Fund; provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than individuals) of a LenderLender or a Related Fund, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or Lender, (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or (z) an assignment to one or more Replacement Lenders pursuant to Section 14.2); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the AssigneeAssignee and such assignment has been recorded in the Register, (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) except in connection with any assignment to any Replacement Lender pursuant to Section 14.2, unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant are subject to the requirements and limitations therein (including the requirements of Section 16(c)) 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 Parent or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender and the Commitments of, and principal amounts (and stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to time (each, a “Registered Loan”).
(i) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrower from time to time as Borrower may reasonably request.
(the "Register”). k) The entries in the Register shall be conclusiveconclusive absent manifest error, and Borrower, Agent and the Lenders may shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 2 contracts
Sources: Credit Agreement (Horizon Lines, Inc.), Credit Agreement (Horizon Lines, Inc.)
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed delayed, or conditioned, conditioned and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 and integral multiples of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iA) no Term Loan Lender shall make any such assignment may be made if such assignment would result in more than four (4) Term Loan Lenders existing at any one time under this Agreement, unless prior to a natural personor in connection with such assignment, (ii) no assignment may be made to a one or more of the Revolving Lenders shall have exercised their Term Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor purchase rights under Section 2.15 and (iiiB) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan, the Advances and/or other Obligations (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. This Section 13.1(h) shall be construed so that the Term Loan, the Advances and other Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC. In the case of any assignment by a Lender of all or any portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register meeting the requirements of Treasury Regulation Section 5f.103-1(c) on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to the contrarymaintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
(k) Notwithstanding anything in Section 13.1 to the "Register”). The entries contrary, any Farm Credit Lender that (a) has purchased a participation or sub-participation in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded Term Loans in the Register pursuant to minimum amount of $5,000,000 on or after the terms hereof as a Lender hereunder for all purposes of this AgreementClosing Date, notwithstanding (b) is, by written notice to the contraryAdministrative Borrower and Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Administrative Borrower and Agent to become a Voting Participant (to the extent such consent would be required pursuant to Section 13.1(a) if such transfer were an assignment rather than a sale of a participation or sub-participation), shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were a Term Loan Lender, on any matter requiring or allowing a Term Loan Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an assignee as set forth in Exhibit A-1 hereto and (ii) state the dollar amount of the participation or sub-participation purchased. The Register Administrative Borrower and Agent shall be available for inspection by Borrower entitled to conclusively rely on information contained in notices delivered pursuant to this paragraph. Notwithstanding the foregoing, each bank or other lending institution that is a member of the Farm Credit System designated as a Voting Participant in Schedule 13.1(k) hereto shall be a Voting Participant without delivery of a Voting Participant Notification and any Lenders, at any reasonable time and from time to time upon reasonable without the prior notice.written consent of the Administrative Borr
Appears in 2 contracts
Sources: Credit Agreement (BOISE CASCADE Co), Credit Agreement (BOISE CASCADE Co)
Assignments and Participations. (ai) With 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 owed to it and its Revolver Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participationAgent, acting solely for this purpose as a non-fiduciary an agent of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participantat Agent’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment Revolver Commitments of, and principal amount amounts (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "“Register”). The entries in the Register shall be conclusiveconclusive absent manifest error, and BorrowerBorrowers, Agent and the Lenders may shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower Borrowers and any LendersLender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 2 contracts
Sources: Credit Agreement (Falcon Capital Acquisition Corp.), Credit Agreement (Falcon Capital Acquisition Corp.)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Agent and each Lender and any such assignment without the Agents' and Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:
(i) all or a portion of its Commitment and any Loan made by it with the written consent of the Borrower (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and
(ii) [reserved]; and provided, however, that (x) no written consent of the Borrower shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default has occurred and is continuingpursuant to Sections 9.01(a), (f) or (2) in connection with an assignment to a Person g); provided further that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless Borrower objects it shall have objected thereto by written notice to Agent the assigning Lender within 5 10 Business Days after having received written notice thereof.
(c) and with Assignments shall be subject to the prior written consent following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of Agent, which consent of Agent shall not be unreasonably withheld, delayed $1,000,000 in excess thereof (or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender's Commitment) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment); provided, however, that (i) no assignment may be made to a natural person, );
(ii) no Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Administrative Agent, Affiliate of a Loan Partyfor its acknowledgment, Equity Sponsor, or Affiliate of Equity Sponsor an Assignment and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAssumption, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrower the Administrative Agent, for the benefit of the Administrative Agent, a processing and Agent recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender and the Assignee, (ii) or a Related Fund of 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(bLender), ; and
(iii) unless waived by AgentExcept as expressly provided in Section 12.07(m), the assigning no such assignment shall be made to an Affiliated Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesnatural person.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in each Assignment and Acceptance and, if applicable, payment of Assumption and recordation on the required processing feeRegister, (i) the Assignee assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(ce) By executing and delivering an Assignment and AcceptanceAssumption, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, Assumption; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”Registered Loans"). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Assumption and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent's execution of an acceptance to such Assignment and Assumption), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name and address of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender's obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09, Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
(m) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign and delegate all or a portion of its Loans to Holdings, the Borrower or any of its Restricted Subsidiaries pursuant to either (x) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and the Auction Agent or (y) an open-market purchase; provided that:
(i) no Event of Default has occurred and is continuing or would result therefrom;
(ii) any Loans acquired by Holdings, the Borrower or any of its Restricted Subsidiaries shall be retired and canceled and deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect to the extent permitted by applicable law as determined in good faith by the Borrower or its advisors; provided that, if any such Loan is not retired and canceled, then the Affiliated Lender holding such Loan shall be deemed to have acknowledged and agreed, by its acquisition of such Loan, that:
(A) it shall not have any right to (x) attend or participate in (including, in each case, by telephone) any meeting (including “"Lender only”" meetings) or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (y) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders or any other material which is “"Lender only”", except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Article II) or receive any advice of counsel to the Administrative Agent or (z) make any challenge to the Administrative Agent’'s or any other Lender’'s attorney-client privilege on the basis of its status as a Lender; and
(B) except with respect to any amendment, modification, waiver, consent or other action (1) in Section 12.02 requiring the consent of all Lenders, all Lenders directly and adversely affected or specifically such Lender, (2) that alters an Affiliated Lender’'s pro rata share of any payments given to all Lenders, or (3) affects the Affiliated Lender (in its capacity as a Lender) in a manner that is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and, in the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is materially adverse to such Affiliated Lender relative to other Lenders, shall be deemed to have voted its interest in the Loans in the same proportion as the other Lenders in the same Class) (and shall be deemed to have been voted in the same percentage as all other applicable Lenders voted if necessary to give legal effect to this paragraph) (but, in any event, in connection with any amendment, modification, waiver, consent or ot
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Revolver Commitments) to one or more assignees that is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 10 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Lender.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Loan Party,
(C) no assignment may be made to a Defaulting Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion Subsidiary thereof,
(D) the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000);
(E) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(F) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, .
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiG) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500; and
(H) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.3 with respect to the period that it was a Lender) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that (i) nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); ) and provided(ii) except to the extent otherwise expressly agreed by the affected parties, for greater certainty no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16having been a Defaulting Lender.
(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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b)an executed Assignment and Assumption, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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; provided, that such Participant agrees to be subject to Section 15.12(b) as though it were a Lender. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not to be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if a Default or an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender Lender, or (3) if such assignment is in connection with a sale or other disposition of all or substantially all of any Lender’s loan portfolio; provided, thatfurther, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and (B) Agent and with Swing Lender.
(ii) Assignments shall be subject to the prior written consent following additional conditions: (A) no assignment may be made (i) so long as no Event of AgentDefault has occurred and is continuing, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is Disqualified Institution, or (ii) to a Lender natural person, (B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement, (E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender ▇▇▇▇▇▇ and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and (ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.Agent (the “Administrative Questionnaire”). - 88 – BN 88856835v9
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 16 and Section 17.9(a18.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b14.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that that
(i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.- 89 – BN 88856835v9
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.918.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each ; provided, that no such pledge shall release such Lender that sells a participation, acting solely from any of its obligations hereunder or substitute any such pledgee or assignee for this purpose such Lender as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contraryparty hereto.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan and Security Agreement (Sunrise Realty Trust, Inc.)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowerthe Lender and any such assignment without the Lender’s prior written consent shall be null and void.
(b) The Lender may assign to one or more other lenders or other Persons all or a portion of its rights and obligations under this Agreement with respect to any Loan or portion thereof held by it with, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of so long as no Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which the Parent (such consent of Agent shall not to be unreasonably withheld, delayed conditioned or conditioned, and delayed); provided that no such consent of Parent shall not be required in connection with respect of an assignment to a Person that is a an existing Lender or to an Affiliate (other than individuals) or a Related Fund of a Lender; provided, any Lender may assign and delegate to one further, that (i) such assignment is in an amount which is at least $5,000,000 or more assignees a multiple of $100,000 in excess thereof (each, an "Assignee") all or any portion the remainder of the ObligationsLender’s Commitment), the Revolver Commitments and the other rights and obligations except that such requirements in respect of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount and multiples in excess thereof shall not apply to an assignment by a Lender to (x) an assignment or delegation by any Lender to any other Lender or a Lender, an Affiliate of any a Lender or a Related Fund of a Lender or (y) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)5,000,000 or a multiple of $100,000 in excess thereof; provided, however, that (i) no assignment may be made to a natural person, (ii) no the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Lender, Affiliate of a Loan Partyfor its acceptance, Equity Sponsoran Assignment and Acceptance, or Affiliate of Equity Sponsor and together with the promissory note, if any, subject to such assignment; (iii) no such assignment of Advances or Revolver Commitments may shall be made to a Person that cannot any Loan Party, any Equity Investor or any of their respective Affiliates; (directly or through an Applicable Designeeiv) lend to Lender shall give the Swiss Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together assignment or transfer (along with payment instructions, addresses, and related information with respect confirmation from the proposed assignee or transferee as to whether the Assignee, have been given assignee or transferee is a Qualifying Bank) at least ten (10) Business Days prior to such assignment or transfer; (v) the Swiss Borrower and Agent by may make a written objection to such Lender prior to such assignment or transfer based on the Swiss Borrower’s reasonable belief that such assignment or transfer could reasonably be expected to violate the 10 Non-Bank Rule; (vi) if such objection is made, such assignment or transfer shall be effected only with the Swiss Borrower’s consent, not to be unreasonably withheld or delayed (it being unreasonable to withhold consent unless such assignment or transfer could reasonably be expected to violate the 10 Non-Bank Rule, including cases where there is reasonable doubt or uncertainty whether the confirmation of the assignee or transferee being a Qualifying Bank is correct or there is reasonable doubt or uncertainty whether the assignee or transferee could be regarded as several parties by the Swiss Federal Tax Administration) and (vii) Lender shall give the AssigneeBorrower notice of such assignment or transfer (along with confirmation from the proposed assignee or transferee in accordance with Section 2.07(i)). Upon such execution, (ii) such Lender delivery and its Assignee have delivered to Borrower acceptance, from and Agent an after the effective date specified in each Assignment and Acceptance and Agent has notified recordation on the assigning Register, which effective date shall be at least three (3) Business Days after the delivery thereof to the Lender of its receipt thereof in accordance with Section 13.1(b(or such shorter period as shall be agreed to by the Lender and the parties to such assignment), (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a “Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 ” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its such rights (except with respect to Section 10.3) and be released from any future such obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and Agreement, the other Loan Documents, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agent, such the assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) 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, Documents; and (viv) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement The Registrar shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationwithout liability, acting solely for this purpose as a non-fiduciary agent of Borrowerthe Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to and, to the extent needed, accepted by it and a register (the “Register”) for the recordation of the names and addresses of the LendersLenders and the Commitment of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof Lender from time to time (the "Register”)time. The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and Borrowerthe Borrowers, the Collateral Agent and the Lenders may Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower the Collateral Agent, Borrowers and any Lenders, Lender party hereto at any reasonable time and from time to time upon reasonable prior notice. In connection with any amendment requiring the Collateral Agent's consent or direction to the Collateral Agent under the Loan Documents, the Collateral Agent shall be entitled to receive, and may conclusively rely on, a then-current copy of the Register, and may, in its discretion, act or refuse to act until it is provided to it This Section 10.07(d) shall be construed so that the Loans and Commitment are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2), and 881(c)(2) of the Code. Additionally, the parties to each assignment shall execute and deliver to the Parent any tax forms or other documentation required to be delivered pursuant to Section 2.07.
(e) In the event that the Lender sells participations in a Loan, the Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Loans held by it and the principal amount (and stated interest thereon) of the portion of the Loan that is the subject of the participation (the “Participant Register”). A 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, which shall be conclusive absent manifest error. The Participant Register shall be available for inspection by the Borrowers and any Lender party hereto at any reasonable time and from time to time upon reasonable prior notice. The Participant Register shall be maintained in registered form within the meaning of Section 5f.103-1(c) of the Treasury Regulations.
(f) The Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment, the Loans made by it); provided that (i) the Lender’s obligations under this Agreement (including its Commitment hereunder) and the other Loan Documents shall remain unchanged; (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require the Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party.
(g) Each Borrower agrees that each participant in a Loan that has not become a Lender with respect to the assigned interest shall be entitled to the benefits of Section 2.07 (subject to the requirements and limitations therein, including the requirements under Section 2.07(e) (it being understood that the documentation required from the participant or assignee under Section 2.07(e) shall be provided in the first instance to the Person through whom such participation or assigned interest is held)) to the same extent as if it were a Lender and had acquired the relevant interest in the Loan by assignment under Section 10.07(b); provided that such (1) participant or assignee (i) agrees to be subject to the provisions of Section 2.07 as if it were a Lender that was an assignee under Section 10.07(b) and (ii) shall not be entitled to receive any greater benefit than the applicable Lender would have received if such participation or assignment had been effected as an assignment pursuant to Section 10.07(b) and (2) (i) the participant shall only be entitled to such benefits (including, for the avoidance of doubt, any requirement to make an increased payment or make any payment for any Indemnified Taxes) if the effect of the participation is to make the participant the beneficial owner of the interest paid by the Borrower; and (i) Section 2.17(l) shall apply mutatis mutandis as if references to an assignment in that Section included a participation.
(h) The Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to the Lender pursuant to a securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto. The Loan Parties shall cooperate with the Lender and its Affiliates to effect the Securitization including by providing such information as may be reasonably requested by the Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheld, delayed withheld or conditioned, and delayed) of:
(A) Parent; provided that no consent of Parent shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Parent shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Lender.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that ;
(iD) no each partial assignment may shall be made to a natural person, (ii) no as an assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate proportionate part of Equity Sponsor all the assigning Lender’s rights and obligations under this Agreement;
(iiiE) no the parties to each assignment of Advances or Revolver Commitments may be made shall execute and deliver to a Person Agent an Assignment and Acceptance Agreement; provided that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Parent and Agent by such Lender and the Assignee, .
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500; and
(G) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance Agreement 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 AcceptanceAcceptance Agreement, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, provided that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and AcceptanceAcceptance 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 AcceptanceAcceptance 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 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 any Loan Party Borrowers or the performance or observance by any Loan Party Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAcceptance Agreement, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, provided that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Unifi Inc)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Revolving Credit Lender may sell, transfer, negotiate or assign and delegate to one or more assignees (each, an "Assignee") Eligible Assignees all or any a portion of the Obligations, the Revolver Commitments and the other its rights and obligations hereunder (including all of such Lender hereunder its rights and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender obligations with respect to the extent that Revolving Loans, the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Swing Loans and the Letters of Credit); provided, however, that (i) no if any such assignment may shall be made to a natural personof the assigning Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment shall cover the same percentage of such Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, (ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment may be is being made to a Loan PartyLender or an Affiliate or Approved Fund of such Lender, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent, the Borrower and each Issuer (which consent of the Borrower, the Administrative Agent and each Issuer shall each not be unreasonably withheld or delayed) and (iv) each Revolving Credit Lender shall establish and maintain a record of whether such assignment is an assignment of Advances Revolving Credit Outstandings or Revolver Revolving Credit Commitments may under any Revolving Credit Commitment Increase that is subject to any mandatory commitment reductions and/or prepayment provided herein; provided, however, that the Borrower shall be made deemed to a Person that cannot (directly or through an Applicable Designee) lend have consented to Borrower in Dollars, Canadian Dollars, Euros any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days of having received notice thereof; and Sterling; provided, further, that that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and Agent be continuing. In addition, any Lender may continue to deal solely and directly with such Lender in connection with make, carry or transfer Revolving Loans at, to, or for the interest so assigned to account of any of its branch offices or the office of an Assignee until (i) written notice Affiliate of such assignmentLender, solely to facilitate any Borrowing in an Alternative Currency.
(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with payment instructionsany Revolving Credit Note (if the assigning Revolving Credit Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon the execution, addressesdelivery, acceptance and related information with respect to recording in 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 Register of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.17 (Substitution of Lenders) and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b11.1(c) (Amendments, Waivers, Etc.), (iii) unless waived the receipt by Agent, the assigning Lender or Assignee has paid to Administrative Agent for Agent's separate account a processing from the assignee of an assignment fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From 3,500 from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Revolving Credit Lender under the Loan Documentsand, if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the assigning Lender Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3for those surviving the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Revolving Credit Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.. AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes The Administrative Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at its address referred to in Section 11.8 (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if a Default or an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning L▇▇▇▇▇’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers and Agent by such Lender L▇▇▇▇▇ 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each [Reserved]
(i) In the event that a Lender that sells a participationparticipations in the Registered Loan, acting solely for this purpose such L▇▇▇▇▇, as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With No Obligor may assign any of its rights or obligations hereunder or under the Notes without the prior written consent of Borrowerall of the Lenders and the Administrative Agent.
(b) Each Lender may assign any of its Loans, which its Notes, its Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of Credit Interest (but only with the consent of, in the case of Borrower shall not be unreasonably withheldits outstanding Commitments, delayed or conditioned, and shall not be required the Company (1) if an unless any Event of Default has shall have occurred and is continuing, or (2be continuing at such time) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, thatand the Administrative Agent and, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion case of the ObligationsRevolving Credit Commitment or a Letter of Credit Interest, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000L/C Issuer); provided, however, provided that (i) no such consent by the Company or the Administrative Agent shall be required in the case of any assignment may be made to a natural person, another Lender; (ii) no any such partial assignment may be made to a Loan PartyPerson other than another Lender shall be in an amount at least equal to $5,000,000 (unless any Event of Default shall have occurred and be continuing at such time, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and in which case there shall be no minimum amount); (iii) no each such assignment of Advances or Revolver Commitments may be made to by a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof Revolving Credit Loans, Revolving Credit Note, Revolving Credit Commitment or Letter of Credit Interest shall be made in accordance with Section 13.1(b)such manner so that the same portion of its Revolving Credit Loans, Revolving Credit Note, Revolving Credit Commitment and Letter of Credit Interest is assigned to the respective assignee; (iiiiv) unless waived each such assignment by Agenta Lender of its Term Loan A Loan, Term Loan A Note or Term Loan A Commitment shall be made in such manner so that the assigning Lender or Assignee has paid same portion of its Term Loan A Loan, its Term Loan A Note and its Term Loan A Commitment is assigned to Agent for Agent's separate account a processing fee in the amount of $3,500respective assignee, and (ivv) any each such assignment by a Lender of any portion of a Lender's Revolver its Term Loan B Loan, Term Loan B Note or Term Loan B Commitment shall be accompanied made in such manner so that the same portion of its Term Loan B Loan, its Term Loan B Note and its Term Loan B Commitment is assigned to the respective assignee. Upon execution and delivery by proportionate assignment the assignee to the Company, the Administrative Agent and the L/C Issuer of an instrument in writing pursuant to which such assignee agrees to become a "Lender's US Advances" hereunder (if not already a Lender) having the Commitment(s), of such Lender's Canadian Dollar AdvancesLoans, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 Letter of Credit Interest specified in such instrument, and upon consent thereto by the required processing feeCompany, (i) the Assignee thereunder shall be a party hereto andAdministrative Agent and the L/C Issuer, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Company (provided that no Default has occurred or is continuing at such time), the Administrative Agent and the L/C Issuer), the obligations, rights and obligations benefits of a Lender hereunder have been holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest (or portions thereof) assigned to it pursuant (in addition to the Commitment(s), Loans and Letter of Credit Interest, if any, theretofore held by such Assignment assignee) and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement the Commitment(s) (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, portion(s) thereof) so assigned. Upon each such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both assignment the assigning Lender and shall pay the Assignee shall be entitled to rely on the provisions Administrative Agent an assignment fee of Section 16$3,000.
(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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any A Lender may at any time sell or agree to sell to one or more commercial banks, financial institutionsother Persons a participation in all or any part of any Loans or Letter of Credit Interest held by it, or other Persons in its Commitments, in which event each purchaser of a participation (a "Participant") participating interests shall be entitled to the rights and benefits of the provisions of Section 9.01(j) hereof with respect to its participation in all or any portion such Loans, Letter of its Obligations, its Revolver Commitment, Credit Interest and Commitments as if (and the other rights and interests of that Lender (the "Originating Lender"Company shall be directly obligated to such Participant under such provisions as if) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain such Participant were a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest said Section, but, except as otherwise provided in the ObligationsSection 4.07(c) hereof, the Revolver Commitments, and the shall not have any other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or benefits under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, Note or consent or waiver with respect to this Agreement or of any other Loan Basic Document would (A) extend the final maturity date 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 Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all . All amounts payable by Borrower hereunder the Company to any Lender under Section 5 hereof in respect of Loans, Letter of Credit Interest held by it, and under the other Loan Documents its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participations in such Loans, Letter of Credit Interest and Commitments, and as if such Lender 24184999 were funding each of such Loan, Letter of Credit Interest and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interest and Commitments 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 Basic Document except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaidi) increase or extend the term, or shall have been declared extend the time or shall have become due and waive any requirement for the reduction or termination, of such Lender's related Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans, Reimbursement Obligations or any portion of any fee hereunder 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 Participant, (iii) reduce the amount of its participating any such payment of principal, (iv) reduce the rate at which interest were owing directly is payable thereon, or any fee hereunder payable to it as the Participant, to a Lender under this Agreement. The level below the rate at which the Participant is entitled to receive such interest or fee, (v) alter the rights or obligations of the Company to prepay the related Loans or (vi) consent to any modification, supplement or waiver hereof or 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 of the other Loan Basic Documents or any direct rights as to the other Lendersextent that the same, Agentunder Section 11.10 or 12.04 hereof, Borrower, requires the Collections consent 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 themselveseach Lender.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at (without notice to the Company, the Administrative Agent or any time create a other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security interest in, or pledge, pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of and its Loans and its Notes to an affiliate. No such assignment shall release the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawassigning Lender from its obligations hereunder.
(he) Each A Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant may furnish any information concerning Triarc and the principal amounts (and stated interest) Company or any of each participant’s interest their Subsidiaries in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and possession of such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the "Register”)provisions of Section 12.12 hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan or Reimbursement Obligation held by it hereunder to the Company or any of its Affiliates or Subsidiaries without the prior consent of each Lender.
(g) Each Lender shall be solely responsible for obtaining from any of its Participants, and providing to the Company, all forms under Section 5.07 hereof. The entries in the Register availability of any benefits to any Participant pursuant to Section 5.07 hereof shall be conclusive, and Borrower, Agent and subject to compliance by such Participant with the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice applicable provisions thereof. Notwithstanding any other provision to the contrary. The Register , no Participant shall be available for inspection by Borrower and entitled to receive any Lenders, at any reasonable time and greater payment pursuant to Section 5.07 hereof than the Lender from time which it acquired its participation would have been entitled to time upon reasonable prior noticereceive.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (each such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within 5 five (5) Business Days after having received notice thereof; and
(B) and with Agent and, solely in the prior written case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the Obligations, foregoing Persons,
(C) the Revolver amount of the Commitments and/or Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers and Agent (and Revolving Agent if applicable) 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's , shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitment shall be accompanied Commitments) an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Agent (the “Administrative Questionnaire”) and of such Lender's Sterling Advancesall information and other documents required under the Patriot Act.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerRevolving Agent, the Collections of Borrower or its SubsidiariesBorrowers, 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 Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participationAgent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), acting solely for this purpose in each case as a non-fiduciary agent on behalf of Borrower▇▇▇▇▇▇▇▇▇, shall maintain, or cause to be maintained, a register (collectively, the “Register”) on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a 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 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 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 any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries A 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 conclusive absent manifest error, and effected only by the registration of such participation on the Participant Register. No Lender shall treat each Person whose name is recorded in have any obligation to disclose all or any portion of the Participant Register as (including the owner identity of such participation for all purposes any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of this Agreement notwithstanding credit or its other obligations under any notice Loan Document) to any Person except to the contrary.
(i) The Agentextent that such disclosure is necessary to establish that such commitment, acting for this purpose as a non-fiduciary agent loan, letter of Borrower, shall maintain, credit or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries other obligation is in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.registered form un
Appears in 1 contract
Sources: Credit Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender, thator an a Related Fund; provided further, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Lender.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Lender, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000);
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(E) the parties to each assignment shall execute and deliver to Agent and Borrower an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ;
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500; and
(G) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies and Borrower receive the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an a Default or Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Neophotonics Corp)
Assignments and Participations. (a) With The Borrower may not assign its rights or obligations hereunder without the prior consent of all of the Lenders and the Agent.
(b) Any Lender may upon the written consent of Borrower, the Agent (which consent of Borrower shall will not be unreasonably withheld) and, delayed or conditioned, and shall not be required (1) if an no Event of Default has occurred and is continuing, or the Borrower (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall will not be unreasonably withheld), delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any a portion of the Obligations, the Revolver Commitments and the other its rights and obligations under this Agreement pursuant to an Assignment Agreement substantially in the form of such Lender hereunder and under the other Loan Documents, in a minimum amount Exhibit C (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000"Assignment Agreement"); provided, however, that (i) no any such assignment may shall be made in the amount of at least $5,000,000 or such lesser amount to a natural personwhich the Borrower has consented, (ii) no the assignee or assignor shall pay to the Agent a processing and recordation fee of $1,500 for each assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no any assignment to an Affiliate of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with will not require the interest so assigned to an Assignee until (i) written notice consent of the Agent or the Borrower. Any such assignment, together with payment instructions, addresses, assignment will become effective upon the execution and related information with respect delivery to the Assignee, have been given to Borrower and Agent by such Lender of the Assignment Agreement and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified consent of the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount if required. Promptly after receipt of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 andAgreement, if applicable, payment of the required processing fee, (i) the Assignee thereunder Agent shall be a party hereto and, send to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received Borrower a copy of this such executed Assignment 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 . Upon the effectiveness of any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender assignment pursuant to this Section 13.1(b12.06(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain assignee will become a "Lender," if not already a "Lender," for all purposes of this Agreement and the other Loan Documents Documents. The assignor shall be relieved of its obligations hereunder to the extent of such assignment (and if the Participant receiving the participating interest in the Obligationsassigning Lender no longer holds any rights or obligations under this Agreement, the Revolver Commitments, and the other rights and interests of the Originating such assigning Lender hereunder shall not constitute cease to be a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, that its rights under Sections 4.06, 5.01, 5.05 and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, 12.03 shall maintain (or cause to not be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”affected). The entries in Agent will prepare on the Participant Register shall be conclusive absent manifest errorlast Business Day of each month during which an assignment has become effective pursuant to this Section 12.06(b), a new Annex I giving effect to all such assignments effected during such month, and such Lender shall treat each Person whose name is recorded in will promptly provide the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice same to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of Borrower and each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees assignees, so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee") ”; provided, however, that no Borrower or Affiliate of a Borrower shall be permitted to become an Assignee), all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments amount of the Term Loan held by each Lender arising therefrom. The Revolver Commitment amount of the Term Loan allocated to each Assignee shall reduce such Revolver Commitments the amount of the Term Loan of the assigning Lender pro tanto.
(e) In the event of any assignment by ▇▇▇▇▇ Fargo, at a time when no Event of Default exists, of all of its interest in the Term Loan to a Person that is not an Affiliate of ▇▇▇▇▇ Fargo, all of the Collateral other than the ▇▇▇▇▇ ▇▇▇▇▇▇ Real Property and other Term Loan Priority Collateral (as defined in the Intercreditor Agreement) shall be released from Agent’s Lien at the sole cost and expense of Borrowers.
(f) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, Obligations and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(fg) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(gh) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(hi) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the loans hereunder (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of its Pro Rata Share of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Pro Rata Share of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(j) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.on the
Appears in 1 contract
Sources: Credit Agreement (Dixie Group Inc)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: (A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and (B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions: (A) no assignment may be made (I) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (II) to a Lender natural person, (B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), (D) each partial assignment shall be made as an assignment of a proport ionate part of all the assigning Lender’s rights and obligations under this Agreement, (E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.,
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Nautilus, Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent; provided, which that no consent of Agent shall not be unreasonably withheld, delayed required( 1) if an Event of Default has occurred and is continuing or conditioned, and shall not be required (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a LenderLender or a Related Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person unless an Event of Default under Section 8.1, any Lender Section 8.4 or Section 8.5 has occurred and is continuing,
(B) no assignment may assign be made to Competitor unless an Event of Default has occurred and delegate to one or more assignees is continuing,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 2,500,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0002,500,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ,
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (1) an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”), (2) any Internal Revenue Service forms required by Agent or Borrower and (iv3) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of the organizational documents for such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAssignee.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Upon Agent's ’s receipt of the required processing fee, the Assignment and Acceptance and the organizational documents for the Assignee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment Commitments allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver CommitmentCommitments, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender participation shall transfer be sold to a natural person or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or a Competitor unless in each case an Event of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant Default shall have occurred and is participatingcontinuing, (Bv) reduce the interest rate applicable no participation shall be sold to the Obligations hereunder in which such Participant is participating, (C) release all a Loan Party or substantially all an Affiliate of the Collateral or guaranties (except to the extent expressly provided herein or in any of the a Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumsParty, and (vvi) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of a portion of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to maintaining the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register the Register available for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Agent and each Lender and any such assignment without the Agents' and Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:
(i) all or a portion of its Commitment and any Loan made by it with the written consent of the Borrower (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and
(ii) [reserved]; and provided, however, that (x) no written consent of the Borrower shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default has occurred and is continuingpursuant to Sections 9.01(a), (f) or (2) in connection with an assignment to a Person g); provided further that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless Borrower objects it shall have objected thereto by written notice to Agent the assigning Lender within 5 10 Business Days after having received written notice thereof.
(c) and with Assignments shall be subject to the prior written consent following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of Agent, which consent of Agent shall not be unreasonably withheld, delayed $1,000,000 in excess thereof (or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender's Commitment) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment); provided, however, that (i) no assignment may be made to a natural person, );
(ii) no Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Administrative Agent, Affiliate of a Loan Partyfor its acknowledgment, Equity Sponsor, or Affiliate of Equity Sponsor an Assignment and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAssumption, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrower the Administrative Agent, for the benefit of the Administrative Agent, a processing and Agent recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender and the Assignee, (ii) or a Related Fund of 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(bLender), ; and
(iii) unless waived by AgentExcept as expressly provided in Section 12.07(m), the assigning no such assignment shall be made to an Affiliated Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesnatural person.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in each Assignment and Acceptance and, if applicable, payment of Assumption and recordation on the required processing feeRegister, (i) the Assignee assignee thereunder shall be become a party hereto "Lender" hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(ce) By executing and delivering an Assignment and AcceptanceAssumption, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, Assumption; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”Registered Loans"). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Assumption and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent's execution of an acceptance to such Assignment and Assumption), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name and address of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender's obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09, Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
(m) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign and delegate all or a portion of its Loans to Holdings, the Borrower or any of its Restricted Subsidiaries pursuant to either (x) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and the Auction Agent or (y) an open-market purchase; provided that:
(i) no Event of Default has occurred and is continuing or would result therefrom;
(ii) any Loans acquired by Holdings, the Borrower or any of its Restricted Subsidiaries shall be retired and canceled and deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect to the extent permitted by applicable law as determined in good faith by the Borrower or its advisors; provided that, if any such Loan is not retired and canceled, then the Affiliated Lender holding such Loan shall be deemed to have acknowledged and agreed, by its acquisition of such Loan, that:
(A) it shall not have any right to (x) attend or participate in (including, in each case, by telephone) any meeting (including “Lender only” meetings) or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (y) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders or any other material which is “Lender only”, except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Article II) or receive any advice of counsel to the Administrative Agent or (z) make any challenge to the Administrative Agent’s or any other Lender’s attorney-client privilege on the basis of its status as a Lender; and
(B) except with respect to any amendment, modification, waiver, consent or other action (1) in Section 12.02 requiring the consent of all Lenders, all Lenders directly and adversely affected or specifically such Lender, (2) that alters an Affiliated Lender’s pro rata share of any payments given to all Lenders, or (3) affects the Affiliated Lender (in its capacity as a Lender) in a manner that is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and, in the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is materially adverse to such Affiliated Lender relative to other Lenders, shall be deemed to have voted its interest in the Loans in the same proportion as the other Lenders in the same Class) (and shall be deemed to have been voted in the same percentage as all other applicable Lenders voted if necessary to give legal effect to this paragraph) (but, in any event, in connection with any amendment, modification, waiver, consent or other act
Appears in 1 contract
Sources: Credit Agreement (Gannett Co., Inc.)
Assignments and Participations. (a) With Subject to the prior written consent following sentence, each Lender (an "ASSIGNOR") may assign its Rights and obligations as a Lender under the Loan Papers to one or more Eligible Assignees pursuant to an Assignment and Acceptance, so long as (i) each assignment shall be of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioneda constant, and not a varying percentage of all Rights and obligations thereunder, (ii) each Assignor shall not in each case pay a $3,500 processing fee to Administrative Agent, (iii) no such assignment shall be required made unless a pro rata assignment is made under the 364-Day Credit Agreement and no such assignment (1including the amount of the simultaneous assignment pursuant to the 364-Day Credit Agreement) if shall be in an amount less than $10,000,000, and (iv) so long as no Default or Event of Default has occurred and is continuing, Bank of America, N.A. shall retain an amount of the Commitment not less than the lesser of (A) 10% of the Commitment or (2B) $30,000,000. Within five Business Days after Administrative Agent receives notice of any such assignment, Company shall execute and deliver to Administrative Agent, in connection with an assignment exchange for the Notes issued to Assignor, new Notes to the order of such Assignor and its assignee in amounts equal to their respective Specified Percentages of the Commitment, if the Commitment is outstanding. Such new Notes shall be dated the effective date of the assignment. It is specifically acknowledged and agreed that on and after the effective date of each assignment, the assignee shall be a Person that is a Lender or an Affiliate (other than individuals) party hereto and shall have the Rights and obligations of a Lender under the Loan Papers.
(provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereofb) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may assign and delegate sell participations to one or more assignees (each, an "Assignee") Persons in all or any portion of the Obligations, the Revolver Commitments and the other rights its Rights and obligations of such Lender hereunder and under the other Loan DocumentsPapers; PROVIDED, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, howeverHOWEVER, that (i) no assignment may be made to a natural personsuch Lender's obligations under the Loan Papers shall remain unchanged, (ii) no assignment may be made such Lender shall remain solely responsible to a Loan Partythe other parties hereto for the performance of such obligations, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment such Lender shall remain the holder of Advances its Notes for all purposes of the Loan Papers, (iv) the participant shall be granted the Right to vote on or Revolver Commitments may be made consent to a Person that cannot only those matters described in SECTIONS 9.1(a), (directly or through an Applicable Designeeb), (c) lend to Borrower in Dollarsand (d), Canadian Dollars(v) Company and each Subsidiary of Company, Euros Administrative Agent, and Sterling; provided, further, that Borrower and Agent may other Lenders shall continue to deal solely and directly with such Lender in connection with its Rights and obligations under the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500Loan Papers, and (ivvi) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of no such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received participation is for an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16amount less than $5,000,000.
(c) By executing and delivering an Assignment and AcceptanceAny Lender may, 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 any assignment or participation, or proposed assignment or participation, disclose to the executionassignee or participant, legalityor proposed assignee or participant, validity, enforceability, genuineness, sufficiency or value of this Agreement any information relating to Company or any other Loan Document Subsidiary of Company furnished pursuant hereto, (ii) to such assigning Lender makes no representation by or warranty and assumes no responsibility with respect to the financial condition on behalf of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement Company or any other Loan Document furnished pursuant heretoSubsidiary of Company, (iii) provided such Assignee confirms that it has received Person executes a copy of this Confidentiality Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeNotwithstanding any other provision set forth in this Agreement, if applicable, and delivery of notice to the assigning each Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at mat any time sell to one or more commercial banks, financial institutions, or other Persons (create a "Participant") participating interests security interest in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations Rights under this Agreement shall remain unchanged(including, (ii) without limitation, the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Advances owing to it and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (ivNote or Notes held by it) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawSystem.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Franchise Finance Corp of America)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee"; provided, however, that no Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "“Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "“Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (MDC Partners Inc)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Agent and each Lender and any such assignment without the Agents' and Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:
(i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Borrower (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and
(ii) [reserved]; and provided, however, that (x) no written consent of the Borrower shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default has occurred and is continuingpursuant to Sections 9.01(a), (f) or (2) in connection with an assignment to a Person g); provided further that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless Borrower objects it shall have objected thereto by written notice to Agent the assigning Lender within 5 10 Business Days after having received written notice thereof.
(c) and with Assignments shall be subject to the prior written consent following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of Agent, which consent of Agent shall not be unreasonably withheld, delayed $1,000,000 in excess thereof (or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender's Commitment) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment); provided, however, that (i) no assignment may be made to a natural person, );
(ii) no Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Administrative Agent, Affiliate of a Loan Partyfor its acknowledgment, Equity Sponsor, or Affiliate of Equity Sponsor an Assignment and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAcceptance, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrower the Administrative Agent, for the benefit of the Administrative Agent, a processing and Agent recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to an Affiliated Lender or to a natural person.
(d) Upon such execution, delivery and acceptance, from and after the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an effective date specified in each Assignment and Acceptance and Agent has notified recordation on the assigning Lender of its receipt thereof in accordance with Section 13.1(b)Register, (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a "Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 " hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Term Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”Registered Loans"). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent's execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Term Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Term Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Term Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Term Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Sources: Credit Agreement (Gannett Co., Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 10 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan DocumentsDocuments (and for the avoidance of doubt, shall have no greater rights under Section 16 than the assigning Lender), and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 15, Section 16 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Pernix Therapeutics Holdings, Inc.)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Agent and each Lender and any such assignment without the Agents’ and Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:
(i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Borrower (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and
(ii) [reserved]; and provided, however, that (x) no written consent of the Borrower shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default has occurred and is continuingpursuant to Sections 9.01(a), (f) or (2) in connection with an assignment to a Person g); provided further that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless Borrower objects it shall have objected thereto by written notice to Agent the assigning Lender within 5 10 Business Days after having received written notice thereof.
(c) and with Assignments shall be subject to the prior written consent following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of Agent, which consent of Agent shall not be unreasonably withheld, delayed $1,000,000 in excess thereof (or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender’s Commitment) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment); provided, however, that (i) no assignment may be made to a natural person, );
(ii) no Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Administrative Agent, Affiliate of a Loan Partyfor its acknowledgment, Equity Sponsor, or Affiliate of Equity Sponsor an Assignment and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAcceptance, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrower the Administrative Agent, for the benefit of the Administrative Agent, a processing and Agent recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to an Affiliated Lender, a natural person or any Disqualified Institution.
(d) Upon such execution, delivery and acceptance, from and after the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an effective date specified in each Assignment and Acceptance and Agent has notified recordation on the assigning Lender of its receipt thereof in accordance with Section 13.1(b)Register, (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a “Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 ” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Term Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register“Registered Loans”). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, - 120 - as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Term Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Term Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Term Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other (except as - 121 - otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Term Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Assignments and Participations. (a) With (i) the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1A) if an Event of Default has occurred and is continuing, or (2B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof), and (ii) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as in each case such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that neither Borrower nor any Affiliate of Borrower shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (iI) 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, (iiII) 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(b14.1(b), and (iiiIII) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 16 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b14.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesCollections, 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 Participant shall be entitled to the benefits of Section 11.3 and Section 16.11 (subject to the requirements and limitations therein, under Section 15.2 and otherwise in this agreement, read as if a Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment; provided, however, that a Participant shall not be entitled to receive any greater payment under Section 11.3 and Section 16.11 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businessesbusiness.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause at its address referred to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, herein a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the applicable Lenders, and the commitment applicable Commitments of, and principal amount amounts (and stated interest) of the Swing Loans applicable Advances owing to, each Lender pursuant to the terms hereof from time to time (the "“Register”). The entries in the Register shall be conclusiveconclusive absent manifest error, and the Borrower, Agent the Agent, and the applicable Lenders may shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lendersor Lender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan and Security Agreement (LAGO Evergreen Credit)
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee"; provided, however, that no Loan Party or Affiliate of a Loan Party, Defaulting Lender or natural person shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Defaulting Lender, Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided in Section 16, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The Except as otherwise provided in Section 16, 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, BorrowerBorrowers, the Collections of Borrower or its SubsidiariesLoan Parties, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement 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 in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Advances (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). 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), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. It is intended that the Register be maintained such that the Loans are in "registered form" for the purposes of the IRC.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. It is intended that each Participant Register be maintained such that the Loans are in "registered form" for all the purposes of this Agreement notwithstanding any notice the IRC. For the avoidance of doubt, Agent in its capacity as Agent shall have no duty to the contrarymaintain a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. DOCPROPERTY "DocID" \* MERGEFORMAT 7221123.9 59
(a) With the prior written consent of BorrowerBorrower Agent, which consent of Borrower Agent shall not be unreasonably withheld, delayed or conditionedconditioned (provided, that, Borrower Agent shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within five (5) Business Days after having received notice thereof), and shall not be required (1i) if a Default or an Event of Default has occurred and is continuing, or (2ii) in connection with an assignment to a Person that is a Lender Lender, or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) or an Related Fund and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than individuals) of a LenderLender or an Related Fund, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, that, no Loan Party, Affiliate of a Loan Party or holder of any Indebtedness (other than the Obligations) of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender or an Related Fund or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, howeverthat, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (iA) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Agent and Agent by such Lender and the Assignee, (iiB) such Lender and its Assignee have delivered to Borrower Agent and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iiiC) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to BorrowerBorrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, howeverthat, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning DOCPROPERTY "DocID" \* MERGEFORMAT 7221123.9 60 Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan DocumentsDocuments without prior notice to, or the consent of, Agent or any Loan Party; provided, howeverthat, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 DOCPROPERTY "DocID" \* MERGEFORMAT 7221123.9 61 amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower▇▇▇▇▇▇▇▇▇) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Advances (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Advances to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Advances to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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, DOCPROPERTY "DocID" \* MERGEFORMAT 7221123.9 62 evidencing the same) may be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with Agent.
(ii) Assignments shall be subject to the prior written consent of Agent, which consent of Agent shall not following additional conditions:
(A) no assignment may be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment made (i) to a Person that is Competitor, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an administrative questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, (vii) no participations shall be sold to any “lender”, “secured party” or “agent” under the ABL Credit Agreement unless such Person is a Lender on the Closing Date, and (vviii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank Bank, any central bank, the Farm Credit Funding Corp. or to any entity organized under the Farm Credit Act and the Bank of Canada such Person may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, shall maintain (or cause to be maintained) , a register (the “Register”) on which it enters the name and address of each Participant Lender as the registered owner of the Commitments and Loan (and the principal amounts (amount thereof and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With Each Lender (an "Assignor") may assign its Rights and obligations as a Lender under the Loan Papers to one or more transferees pursuant to an Assignment and Acceptance, so long as (i) each assignment shall be of a constant, and not a varying percentage of all Rights and obligations thereunder, provided that any assignment may assign a non-pro rata portion of any of the Revolver Loan, Term Loan or Special Purpose Loan, (ii) each Assignor shall obtain in each case the prior written consent of Administrative Agent and the Borrower, which in each case such consent of the Borrower and the Administrative Agent not to be unreasonably withheld or delayed, provided that (A) in the event there exists an Event of Default that is continuing, no consent of the Borrower shall not be unreasonably withheldrequired to make an assignment and (B) no consent of the Borrower shall be required for any Lender to assign all or any portion of its Loan to an Affiliate or another existing Lender, delayed or conditioned(iii) each Assignor shall in each case pay a $3,500 processing fee to Administrative Agent, (iv) no such assignment is for an amount less than $5,000,000 and in increments $1,000,000, provided that, if any such assignment is to an existing Lender, such minimum assignment amounts shall not be required and (1v) if an Event of Default has occurred and is continuing, or (2) in connection with an any such assignment to a Person that is a partial assignment, no Lender or an Affiliate shall hold less than $5,000,000 immediately after giving effect to any assignment. Assignments and other transfers (other than individualsexcept participations) with respect to each Lender's participation in a given Letter of a Lender (provided, that, in each case, Borrower shall Credit may only be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and made with the prior written consent of the Administrative Agent. Within five Business Days after Administrative Agent receives notice of any such assignment, the Borrower shall execute and deliver to Administrative Agent, which consent in exchange for the Notes issued to Assignor, new Notes to the order of Agent such Assignor and its assignee in amounts equal to their respective Applicable Specified Percentages of the Revolver Commitment and/or the Special Purpose Commitment, and/or the outstanding amount of the Term Loan, as applicable. Such new Notes shall not be unreasonably withhelddated the effective date of the assignment. It is specifically acknowledged and agreed that on and after the effective date of each assignment, delayed or conditioned, the assignee shall be a party hereto and shall not be required in connection with an assignment to a Person that is have the Rights and obligations of a Lender or an Affiliate under the Loan Papers. It is specifically agreed by all parties hereto that Lenders may have different percentages for each of the Loans.
(other than individualsb) of a Lender, any Each Lender may assign and delegate sell participations to one or more assignees (each, an "Assignee") Persons in all or any portion of the Obligations, the Revolver Commitments and the other rights its Rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)Papers; provided, however, that (i) no assignment may be made to a natural personsuch Lender's obligations under the Loan Papers shall remain unchanged, (ii) no assignment may be made such Lender shall remain solely responsible to a Loan Partythe other parties hereto for the performance of such obligations, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment such Lender shall remain the holder of Advances its Notes for all purposes of the Loan Papers, (iv) the participant shall be granted the Right to vote on or Revolver Commitments may be made consent to a Person that cannot only those matters described in Sections 11.01(a), (directly or through an Applicable Designeeb), (c) lend to Borrower in Dollarsand (d) hereof, Canadian Dollars(v) Obligors, Euros the Administrative Agent, and Sterling; provided, further, that Borrower and Agent may other Lenders shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 their respective 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, Papers and (iivi) 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 no such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of participation is for an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16amount less than $5,000,000.
(c) By executing and delivering an Assignment and AcceptanceAny Lender may, 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 any assignment or the executionparticipation, legalityor proposed assignment or participation, 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 disclose to the financial condition of assignee or participant, or proposed assignee or participant, any Loan Party information relating to the Parent, the Borrower and their Subsidiaries furnished to such Lender by or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all behalf of the obligations which by Parent, the terms of this Agreement are required to be performed by it as a LenderBorrower and their Subsidiaries.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or Notwithstanding any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of provision set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(gi) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights Rights under and interest in this Agreement (including, without limitation, the Advances owing to it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank System and (ii) no participant of any Lender may further assign or U.S. Treasury Regulation 31 CFR §203.24, or in favor participate any of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s its interest in the Swing Loans Loan Papers to any Person (except as may be required by Law or other obligations under this Agreement (the "Participant Register”a Tribunal having authority over such participant). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of BorrowerBorrowers, which consent of Borrower Borrowers shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1i) if an Event of Default has occurred and is continuing, or (2ii) in connection with the syndication of the Commitments and the Obligations by WFCF to the initial Lenders party hereto as of the date hereof (the “Primary Syndication”); provided, that, WFCF shall consult with Borrowers in connection with such Primary Syndication (it being understood that in no event shall WFCF be required to obtain Borrowers’ consent with respect to any assignment made in connection with such Primary Syndication)), and (iii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, thatexcept, in each case, Borrower shall be deemed to have consented to a proposed Defaulting Lender or its Affiliates, which assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereofshall not be permitted) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that, no Loan Party, Affiliate of a Loan Party, Defaulting Lender, or Affiliate of a Defaulting Lender shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xA) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (yB) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural personthat, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i1) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Borrowers and Agent by such Lender and the Assignee, (ii2) such Lender and its Assignee have delivered to Borrower Borrowers 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 (iii3) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that that, nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrowers or the performance or observance by any Loan Party Borrowers of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.arising
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of BorrowerAny Lender may, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and so long as no Event of Default exists, with the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned (provided that no written consent of Agent and Borrower shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender), any Lender may assign and delegate to one or more assignees (each, each an "“Assignee"”; provided that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Parent, Borrower and its their respective Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Jamba, Inc.)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Agent and each Lender and any such assignment without the Agents’ and Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other Lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to:
(i) all or a portion of its Commitment and any Loan made by it with the written consent of the Borrower (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and
(ii) [reserved]; and provided, however, that (x) no written consent of the Borrower shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default has occurred and is continuingpursuant to Sections 9.01(a), (f) or (2) in connection with an assignment to a Person g); provided further that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless Borrower objects it shall have objected thereto by written notice to Agent the assigning Lender within 5 10 Business Days after having received written notice thereof.
(c) and with Assignments shall be subject to the prior written consent following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of Agent, which consent of Agent shall not be unreasonably withheld, delayed $1,000,000 in excess thereof (or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender’s Commitment) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment); provided, however, that (i) no assignment may be made to a natural person, );
(ii) no Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Administrative Agent, Affiliate of a Loan Partyfor its acknowledgment, Equity Sponsor, or Affiliate of Equity Sponsor an Assignment and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAssumption, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrower the Administrative Agent, for the benefit of the Administrative Agent, a processing and Agent recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender and the Assignee, (ii) or a Related Fund of 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(bLender), ; and
(iii) unless waived by AgentExcept as expressly provided in Section 12.07(m), the assigning no such assignment shall be made to an Affiliated Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesnatural person.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in each Assignment and Acceptance and, if applicable, payment of Assumption and recordation on the required processing feeRegister, (i) the Assignee assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(ce) By executing and delivering an Assignment and AcceptanceAssumption, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, Assumption; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationThe Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance Assumption delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register“Registered Loans”). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Assumption and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Assumption), the Administrative Agent shall accept such assignment, and record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent).
(h) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(i) In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrower, maintain, or cause to be maintained, a register, on which it enters the name and address of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09, Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
(m) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign and delegate all or a portion of its Loans to Holdings, the Borrower or any of its Restricted Subsidiaries pursuant to either (x) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and the Auction Agent or (y) an open-market purchase; provided that:
(i) no Event of Default has occurred and is continuing or would result therefrom;
(ii) any Loans acquired by Holdings, the Borrower or any of its Restricted Subsidiaries shall be retired and canceled and deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect to the extent permitted by applicable law as determined in good faith by the Borrower or its advisors; provided that, if any such Loan is not retired and canceled, then the Affiliated Lender holding such Loan shall be deemed to have acknowledged and agreed, by its acquisition of such Loan, that:
(A) it shall not have any right to (x) attend or participate in (including, in each case, by telephone) any meeting (including “Lender only” meetings) or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (y) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders or any other material which is “Lender only”, except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Article II) or receive any advice of counsel to the Administrative Agent or (z) make any challenge to the Administrative Agent’s or any other Lender’s attorney-client privilege on the basis of its status as a Lender; and
(B) except with respect to any amendment, modification, waiver, consent or other action (1) in Section 12.02 requiring the consent of all Lenders, all Lenders directly and adversely affected or specifically such Lender, (2) that alters an Affiliated Lender’s pro rata share of any payments given to all Lenders, or (3) affects the Affiliated Lender (in its capacity as a Lender) in a manner that is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and, in the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is materially adverse to such Affiliated Lender relative to other Lenders, shall be deemed to have voted its interest in the Loans in the same proportion as the other Lenders in the same Class) (and shall be deemed to have been voted in the same percentage as all other applicable Lenders voted if necessary to give legal effect to this paragraph) (but, in any event, in connection with any amendment, modification, waiver, consent or other act
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: (A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received written notice thereof; and (B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions: (A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (ii) to a Lender or natural person, (B) no assignment may be made to a Loan Party, an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion Sponsor Affiliated Entity, (C) the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.,
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.the
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that that
(i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person or, unless an Event of Default has occurred and is continuing, a Disqualified Institution, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 during the continuance of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(hi) Each In the event that a Lender that sells a participationparticipations in the Registered Loan, acting solely for this purpose such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 Bank Obligations owed to it and its Loans) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent and Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Event of Agent shall not be unreasonably withheldDefault has occurred and is continuing, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is Competitor, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments Credit Limits and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ,
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,5005,000, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”).
(H) Upon notice from Borrower, Agent and the Lenders shall at Borrower’s expense take such steps as may reasonably be accompanied requested by proportionate assignment Borrower to enable the Borrower or any Subsidiary to comply with the Foreign Ownership Control or Influence requirements of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesthe United States government imposed from time to time.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.03) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a17.09(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b13.01(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments Credit Limits arising therefrom. The Revolver Commitment Credit Limit allocated to each Assignee shall reduce such Revolver Commitments Credit Limits of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Bank Obligations, its Revolver CommitmentCredit Limit, its Loans, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Bank Obligations, the Revolver CommitmentsCredit Limits, the Loans, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Bank Obligations hereunder in which such Participant is participating; provided that the foregoing shall not apply to the extension of the “Maturity Date” as defined, but only the due date for the particular Loan in which such Participant is participating, (B) reduce the interest rate applicable to the Bank Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Bank Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, or any Affiliate of a Loan Party or any Person whose participation would not comply with the National Industrial Security Program Operating Manual and associated laws and regulations, (vii) prior to a Default or Event of Default, no participation shall be sold to any Competitor of a Loan Party, and (vviii) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesLoan Parties, the Collateral, or otherwise in respect of the Bank Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.917.09, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed delayed, or conditioned, conditioned and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 and integral multiples of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iA) no Term Loan Lender shall make any such assignment may be made if such assignment would result in more than four (4) Term Loan Lenders existing at any one time under this Agreement, unless prior to a natural personor in connection with such assignment, (ii) no assignment may be made to a one or more of the Revolving Lenders shall have exercised their Term Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor purchase rights under Section 2.15 and (iiiB) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment \66176107.6 of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except \66176107.6 to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (BOISE CASCADE Co)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto; provided that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of a Revolver Commitment (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form for the purposes of the IRC, including under Section 5f.103-1(c) of the United States Treasury Regulations and its successor. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Jakks Pacific Inc)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowerthe Lender and any such assignment without the Lender’s prior written consent shall be null and void.
(b) The Lender may assign to one or more other lenders or other Persons all or a portion of its rights and obligations under this Agreement with respect to any Loan or portion thereof held by it with, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of so long as no Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which the Parent (such consent of Agent shall not to be unreasonably withheld, delayed conditioned or conditioned, and delayed); provided that no such consent of Parent shall not be required in connection with respect of an assignment to a Person that is a an existing Lender or to an Affiliate (other than individuals) or a Related Fund of a Lender; provided, any Lender may assign and delegate to one further, that (i) such assignment is in an amount which is at least $5,000,000 or more assignees a multiple of $100,000 in excess thereof (each, an "Assignee") all or any portion the remainder of the ObligationsLender’s Commitment), the Revolver Commitments and the other rights and obligations except that such requirements in respect of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount and multiples in excess thereof shall not apply to an assignment by a Lender to (x) an assignment or delegation by any Lender to any other Lender or a Lender, an Affiliate of any a Lender or a Related Fund of a Lender or (y) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)5,000,000 or a multiple of $100,000 in excess thereof; provided, however, that (i) no assignment may be made to a natural person, (ii) no the parties to each such assignment may be made shall execute and deliver to a Loan Partythe Lender, Affiliate of a Loan Partyfor its acceptance, Equity Sponsoran Assignment and Acceptance, or Affiliate of Equity Sponsor and together with the promissory note, if any, subject to such assignment; (iii) no such assignment of Advances or Revolver Commitments may shall be made to a Person that cannot any Loan Party, any Equity Investor or any of their respective Affiliates; (directly or through an Applicable Designeeiv) lend to Lender shall give the Swiss Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together assignment or transfer (along with payment instructions, addresses, and related information with respect confirmation from the proposed assignee or transferee as to whether the Assignee, have been given assignee or transferee is a Qualifying Bank) at least ten (10) Business Days prior to such assignment or transfer; (v) the Swiss Borrower and Agent by may make a written objection to such Lender prior to such assignment or transfer based on the Swiss Borrower’s reasonable belief that such assignment or transfer could reasonably be expected to violate the 10 Non-Bank Rule; (vi) if such objection is made, such assignment or transfer shall be effected only with the Swiss Borrower’s consent, not to be unreasonably withheld or delayed (it being unreasonable to withhold consent unless such assignment or transfer could reasonably be expected to violate the 10 Non-Bank Rule, including cases where there is reasonable doubt or uncertainty whether the confirmation of the assignee or transferee being a Qualifying Bank is correct or there is reasonable doubt or uncertainty whether the assignee or transferee could be regarded as several parties by the Swiss Federal Tax Administration) and (vii) Lender shall give the AssigneeBorrower notice of such assignment or transfer (along with confirmation from the proposed assignee or transferee in accordance with Section 2.07(i)). Upon such execution, (ii) such Lender delivery and its Assignee have delivered to Borrower acceptance, from and Agent an after the effective date specified in each Assignment and Acceptance and Agent has notified recordation on the assigning Register, which effective date shall be at least three (3) Business Days after the delivery thereof to the Lender of its receipt thereof in accordance with Section 13.1(b(or such shorter period as shall be agreed to by the Lender and the parties to such assignment), (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a “Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 ” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its such rights (except with respect to Section 10.3) and be released from any future such obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and Agreement, the other Loan Documents, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agent, such the assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) 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, Documents; and (viv) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement The Registrar shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationwithout liability, acting solely for this purpose as a non-fiduciary agent of Borrowerthe Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to and, to the extent needed, accepted by it and a register (the “Register”) for the recordation of the names and addresses of the LendersLenders and the Commitment of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) of the Swing Loans owing to, each Lender pursuant to the terms hereof Lender from time to time (the "Register”)time. The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and Borrowerthe Borrowers, the Collateral Agent and the Lenders may Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower the Collateral Agent, Borrowers and any Lenders, Lender party hereto at any reasonable time and from time to time upon reasonable prior notice. In connection with any amendment requiring the Collateral Agent’s consent or direction to the Collateral Agent under the Loan Documents, the Collateral Agent shall be entitled to receive, and may conclusively rely on, a then-current copy of the Register, and may, in its discretion, act or refuse to act until it is provided to it this Section 10.07(d) shall be construed so that the Loans and Commitment are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2), and 881(c)(2) of the Code. Additionally, the parties to each assignment shall execute and deliver to the Parent any tax forms or other documentation required to be delivered pursuant to Section 2.07.
(e) In the event that the Lender sells participations in a Loan, the Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants in the Loans held by it and the principal amount (and stated interest thereon) of the portion of the Loan that is the subject of the participation (the “Participant Register”). A 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, which shall be conclusive absent manifest error. The Participant Register shall be available for inspection by the Borrowers and any Lender party hereto at any reasonable time and from time to time upon reasonable prior notice. The Participant Register shall be maintained in registered form within the meaning of Section 5f.103-1(c) of the Treasury Regulations.
(f) The Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment, the Loans made by it); provided that (i) the Lender’s obligations under this Agreement (including its Commitment hereunder) and the other Loan Documents shall remain unchanged; (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require the Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party.
(g) Each Borrower agrees that each participant in a Loan that has not become a Lender with respect to the assigned interest shall be entitled to the benefits of Section 2.07 (subject to the requirements and limitations therein, including the requirements under Section 2.07(e) (it being understood that the documentation required from the participant or assignee under Section 2.07(e) shall be provided in the first instance to the Person through whom such participation or assigned interest is held)) to the same extent as if it were a Lender and had acquired the relevant interest in the Loan by assignment under Section 10.07(b); provided that such (1) participant or assignee (i) agrees to be subject to the provisions of Section 2.07 as if it were a Lender that was an assignee under Section 10.07(b) and (ii) shall not be entitled to receive any greater benefit than the applicable Lender would have received if such participation or assignment had been effected as an assignment pursuant to Section 10.07(b) and (2) (i) the participant shall only be entitled to such benefits (including, for the avoidance of doubt, any requirement to make an increased payment or make any payment for any Indemnified Taxes) if the effect of the participation is to make the participant the beneficial owner of the interest paid by the Borrower; and (ii) Section 2.17(l) shall apply mutatis mutandis as if references to an assignment in that Section included a participation.
(h) The Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to the Lender pursuant to a securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto. The Loan Parties shall cooperate with the Lender and its Affiliates to effect the Securitization including by providing such information as may be reasonably requested by the Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Any Lender may at any time assign and delegate to one or more assignees (each, each an "“Assignee"”) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentAgent and, so long as no Event of Default shall have occurred and be continuing, Borrower) of Two Million Five Hundred Thousand Dollars ($5,000,000 2,500,000) (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or an Approved Fund, (y) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least Three Million Dollars ($5,000,0003,000,000) or (z) an Eligible Assignee); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of Three Thousand Five Hundred Dollars ($3,500). So long as no Event of Default shall have occurred and be continuing, and (ivany proposed assignment pursuant to this Section 13.1(a) any assignment of any portion of a Lender's Revolver Commitment other than to an Eligible Assignee shall be accompanied by proportionate assignment subject to the consent of such Lender's US AdvancesBorrower, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advanceswhich consent shall not be unreasonably withheld or delayed.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 13.1(e) are solely for the benefit of the Lender Group and Borrower shall not have any rights as third party beneficiaries of any such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees assignees, so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee") ”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee), all or any portion of the Obligations, the Revolver Commitments (together with all or such portion of such Lender’s corresponding Pro Rata Share in the 1995 Bonds), and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the loans hereunder (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of its Commitment to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Dixie Group Inc)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) that are Eligible Transferees all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to BorrowerBorrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(ei) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Parent or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(i) (ii) Each Participant shall be entitled to additional payments from the Borrowers pursuant to Section 16.1 as if such Participant were a Lender (and subject to the requirements and limitations imposed on such Lender with respect to such additional payments) if such Participant is treated as the beneficial owner for U.S. income Tax purposes (or other applicable Tax purposes) of the portion of the Loan with respect to which a participation is made. Each Originating Lender shall be entitled to continue receiving additional payments from the Borrowers pursuant to Section 16.1 with respect to any Loan notwithstanding the fact that such Originating Lender has assigned a participation in such Loan to a Participant if such Originating Lender is treated as the beneficial owner for U.S. income Tax purposes (and other applicable Tax purposes) of the portion of the Loan with respect to which a participation is made.
(iii) Each Originating Lender shall maintain, as a non-fiduciary agent of the Borrowers, a register (the “Participant Register”) as to the participations granted and transferred under Section 13.1(e)(i) containing the same information specified in Section 2.3(f) on the Register as if the each Participant were a Lender. Notwithstanding anything in the Agreement to the contrary, any participation made pursuant to Section 13.1(e)(i) shall be effective only upon appropriate entries with respect thereto being made in the Participant Register. This Section 13.1(e)(iii) shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and any related regulations (and any successor provisions).
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest Any other provision in the Swing Loans or other obligations under this Agreement (notwithstanding, unless an Event of Default has occurred or is continuing, without the "Participant Register”). written consent of the Parent in its sole discretion, neither Allied System Holdings, Inc., The entries in the Participant Register ComVest Group, ComVest Investment Partners III, LP, Spectrum, Black Diamond, Yucaipa nor any of their Affiliates shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the permitted to become an Assignee or a Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contraryhereunder.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: (A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and (B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions: (A) no assignment may be made (I) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (II) to a Lender natural person, (B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iD) no each partial assignment may shall be made to a natural person, (ii) no as an assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate proportionate part of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified all the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.114 125672876_9
Appears in 1 contract
Sources: Credit Agreement (Nautilus, Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: (A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an a Default or Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and (B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions: (A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (ii) to a Lender natural person, (B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iD) no each partial assignment may shall be made to a natural person, (ii) no as an assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate proportionate part of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified all the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, Lender’s rights and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.obligations under this Agreement,
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Neophotonics Corp)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) long as no Specified Event of Default has occurred and is continuing, to a Person that is Competitor, or (ii) to a Lender or natural person,
(B) no assignment may be made to a Loan Party, an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. The parties hereto intend that the Register and any other register set forth in this Section 13.1 are maintained such that the Loans are in "registered form" for the purposes of the IRC.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in "registered form" for the purpose of the IRC, including under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Model N, Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Parent; provided, delayed or conditioned, and that no consent of Parent shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Parent shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Lender.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000);
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Parent and Agent by such Lender and the Assignee, .
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500; and
(G) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrowers or the performance or observance by any Loan Party Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Unifi Inc)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower(such consent not to be unreasonably withheld or delayed) of:
(A) Borrowers; provided, which that no consent of Borrower Borrowers shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender or Loan Party, an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion Sponsor Affiliated Entity,
(C) the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not not
constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (Lender; provided, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Revolver Commitment (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With Subject to the following sentence, each Lender (an "Assignor") may assign its Rights and obligations as a Lender under the Loan Papers to one or more Eligible Assignees pursuant to an Assignment and Acceptance, so long as (i) each assignment shall be of a constant, and not a varying percentage of all Rights and obligations thereunder, (ii) each Assignor shall obtain in each case the prior written consent of BorrowerAdministrative Lender and Company, which consent of Borrower shall not be unreasonably withheldwithheld (provided, delayed or conditionedhowever, and shall not be notwithstanding anything herein to the contrary, no consent of Company is required (1) if for any assignment during any time that an Event of Default has occurred and is continuing), (iii) each Assignor shall in each case pay a $3,000 processing fee to Administrative Lender, (iv) no such assignment is for an amount less than $10,000,000, and (v) so long as no Default or Event of Default has occurred and is continuing, NationsBank of Texas, N.A. shall retain an amount of the Commitment not less than the lesser of (A) 10% of the Commitment or (2B) $40,000,000. Within five Business Days after Administrative Lender receives notice of any such assignment, Company shall execute and deliver to Administrative Lender, in connection with an assignment exchange for the Notes issued to Assignor, new Notes to the order of such Assignor and its assignee in amounts equal to their respective Specified Percentages of the Commitment. Such new Notes shall be dated the effective date of the assignment. It is specifically acknowledged and agreed that on and after the effective date of each assignment, the assignee shall be a Person that is a Lender or an Affiliate (other than individuals) party hereto and shall have the Rights and obligations of a Lender under the Loan Papers.
(provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereofb) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Each Lender may assign and delegate sell participations to one or more assignees (each, an "Assignee") Persons in all or any portion of the Obligations, the Revolver Commitments and the other rights its Rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)Papers; provided, however, that (i) no assignment may be made to a natural personsuch Lender's obligations under the Loan Papers shall remain unchanged, (ii) no assignment may be made such Lender shall remain solely responsible to a Loan Partythe other parties hereto for the performance of such obligations, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment such Lender shall remain the holder of Advances its Notes for all purposes of the Loan Papers, (iv) the participant shall be granted the Right to vote on or Revolver Commitments may be made consent to a Person that cannot only those matters described in Sections 9.1(a), (directly or through an Applicable Designeeb), (c) lend to Borrower in Dollarsand (d), Canadian Dollarsand (v) Company and each Subsidiary of Company, Euros Administrative Lender, and Sterling; provided, further, that Borrower and Agent may other Lenders shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 Rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16Papers.
(c) By executing and delivering an Assignment and AcceptanceAny Lender may, 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 any assignment or participation, or proposed assignment or participation, disclose to the executionassignee or participant, legalityor proposed assignee or participant, validity, enforceability, genuineness, sufficiency or value of this Agreement any information relating to Company or any other Loan Document Subsidiary of Company furnished pursuant hereto, (ii) to such assigning Lender makes no representation by or warranty and assumes no responsibility with respect to the financial condition on behalf of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement Company or any other Loan Document furnished pursuant heretoSubsidiary of Company, (iii) provided such Assignee confirms that it has received Person executes a copy of this Confidentiality Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or Notwithstanding any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of provision set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any each Lender may at any time create a security interest in, or pledge, in all or any portion of its rights Rights under and interest in this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawSystem.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Franchise Finance Corp of America)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent; provided, which that no consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a LenderLender or a Related Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person unless an Event of Default under Section 8.1, any Lender Section 8.4 or Section 8.5 has occurred and is continuing,
(B) no assignment may assign be made to Competitor unless an Event of Default has occurred and delegate to one or more assignees is continuing,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 2,500,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0002,500,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning L▇▇▇▇▇’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning 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 L▇▇▇▇▇ 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (1) an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”), (2) any Internal Revenue Service forms required by Agent or Borrower and (iv3) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of the organizational documents for such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAssignee.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Upon Agent's ’s receipt of the required processing fee, the Assignment and Acceptance and the organizational documents for the Assignee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment Commitments allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver CommitmentCommitments, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender participation shall transfer be sold to a natural person or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or a Competitor unless in each case an Event of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant Default shall have occurred and is participatingcontinuing, (Bv) reduce the interest rate applicable no participation shall be sold to the Obligations hereunder in which such Participant is participating, (C) release all a Loan Party or substantially all an Affiliate of the Collateral or guaranties (except to the extent expressly provided herein or in any of the a Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumsParty, and (vvi) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of B▇▇▇▇▇▇▇) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of a portion of the Term Loan (and the principal amount thereof and stated interest thereon) held by such L▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such L▇▇▇▇▇, as a non-fiduciary agent on behalf of B▇▇▇▇▇▇▇, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to maintaining the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register the Register available for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an any Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each In the event that a Lender that sells a participationparticipations in the Registeredany Loan, acting solely for this purpose such Lender, as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Noteany related 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 registeredrelated note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (each such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within 5 five (5) Business Days after having received notice thereof; and
(B) and with Agent and, solely in the prior written case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the Obligations, foregoing Persons,
(C) the Revolver amount of the Commitments and/or Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning L▇▇▇▇▇'s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers and Agent (and Revolving Agent if applicable) by such Lender L▇▇▇▇▇ 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's , shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitment shall be accompanied Commitments) an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Agent (the "Administrative Questionnaire") and of such Lender's Sterling Advancesall information and other documents required under the Patriot Act.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerRevolving Agent, the Collections of Borrower or its SubsidiariesBorrowers, 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 Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participationAgent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), acting solely for this purpose in each case as a non-fiduciary agent on behalf of BorrowerB▇▇▇▇▇▇▇▇, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such L▇▇▇▇▇. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a 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 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 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 any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such L▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries A 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 conclusive absent manifest error, and effected only by the registration of such participation on the Participant Register. No Lender shall treat each Person whose name is recorded in have any obligation to disclose all or any portion of the Participant Register as (including the owner identity of such participation for all purposes any Participant or any information relating to a Participant's interest in any commitments, loans, letters of this Agreement notwithstanding credit or its other obligations under any notice Loan Document) to any Person except to the contrary.
(i) The Agentextent that such disclosure is necessary to establish that such commitment, acting for this purpose as a non-fiduciary agent loan, letter of Borrower, shall maintain, credit or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries other obligation is in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.registered form un
Appears in 1 contract
Sources: Credit Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Agent and each Lender and their respective successors and assigns; PROVIDED, HOWEVER, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of Borrowereach Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Each Lender may, which with the written consent of Borrower the Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Term Loan); PROVIDED, HOWEVER, that (i) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Term Loan) (except such minimum amount shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with apply to an assignment by a Lender to an Affiliate of such Lender or a Person that is a fund or account managed by such Lender or an Affiliate of such Lender or its investment manager), (other than individualsii) of a Lender (provided, that, in the parties to each case, Borrower such assignment shall be deemed execute and deliver to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Agent a processing and recordation fee of Agent shall not be unreasonably withheld, delayed or conditioned, and $5,000 (except the payment of such fee shall not be required in connection with an assignment to a Person that is by a Lender or to an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in or a minimum amount (unless waived fund or account managed by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any such Lender or (yits investment manager) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment written consent of Advances or Revolver Commitments may the Agent shall be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender required in connection with the interest so assigned any assignment by a Lender to an Assignee until (i) written notice Affiliate of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent Lender or a fund or account managed by such Lender or an Affiliate of such Lender or its investment manager. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least 3 Business Days after the delivery thereof to the Agent (or such shorter period as shall be agreed to by the Agent and the Assignee, (ii) parties to 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(bassignment), (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a "Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 " hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein . The Agent shall release any assigning provide the Borrower with notice of each assignment by a Lender from obligations that survive which requires the termination Agent's consent pursuant to this Section 12.07(b) promptly after the effectiveness of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16assignment.
(ci) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (iiB) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iiiC) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (ivD) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender the Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (vE) such Assignee assignee appoints and authorizes the Agent to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (viF) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(dii) Immediately The Agent shall, on behalf of the Borrower, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "REGISTER") for the recordation of the names and addresses of the Lenders and the principal amount of the Term Loan (the "REGISTERED LOANS") from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon Agent's reasonable prior notice. In the case of any assignment pursuant to Section 12.07(b)(iii), the assigning Lender shall maintain a comparable register on behalf of the Borrower.
(iii) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes subject to such assignment, the required processing feeAgent shall, if applicablethe Agent consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register.
(iv) 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 delivery each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agent shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tantocontrary.
(ev) In the event that any Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "PARTICIPANT REGISTER"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(vi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall provide the Agent and the Lender with a completed Internal Revenue Service Form W-8BEN (Certificate of Foreign Status) or a substantially similar form for such purchaser, participant or any other affiliate who is a holder of beneficial interests in the Registered Loan.
(c) Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in or to all or any a portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and obligations under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations(including, the Revolver Commitmentswithout limitation, and the other rights and interests all or a portion of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating its Term Loan); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrower, Agent, the Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Term Loan, (ivB) no Lender shall transfer action directly effecting an extension of the due dates or grant any participating a decrease in the rate of interest payable on the Term Loan or the fees payable under which the Participant has the right to approve any amendment tothis Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any consent or waiver with respect to, Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document, except ). The Loan Parties agree that each participant shall be entitled to the extent such amendment to, or consent or waiver benefits of Section 2.08 and Section 4.05 of this Agreement with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder its participation in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawTerm Loan as if it was a Lender.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (THQ Inc)
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed delayed, or conditioned, conditioned and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or 127044148_2 any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 and integral multiples of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iA) no Term Loan Lender shall make any such assignment may be made if such assignment would result in more than four (4) Term Loan Lenders existing at any one time under this Agreement, unless prior to a natural personor in connection with such assignment, (ii) no assignment may be made to a one or more of the Revolving Lenders shall have exercised their Term Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor purchase rights under Section 2.15 and (iiiB) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.. 127044148_2
(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 any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and 127044148_2 the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion 127044148_2 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 in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan, the Advances and/or other Obligations (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. This Section 13.1(h) shall be construed so that the Term Loan, the Advances and other Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC. In the case of any assignment by a Lender of all or any portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register meeting the requirements of Treasury Regulation Section 5f.103-1(c) on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such 127044148_2 participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to the contrarymaintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
(k) Notwithstanding anything in Section 13.1 to the "Register”). The entries contrary, any Farm Credit Lender that (a) has purchased a participation or sub-participation in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded Term Loans in the Register pursuant to minimum amount of $5,000,000 on or after the terms hereof as a Lender hereunder for all purposes of this AgreementClosing Date, notwithstanding (b) is, by written notice to the contraryAdministrative Borrower and Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Administrative Borrower and Agent to become a Voting Participant (to the extent such consent would be required pursuant to Section 13.1(a) if such transfer were an assignment rather than a sale of a participation or sub-participation), shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were a Term Loan Lender, on any matter requiring or allowing a Term Loan Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an assignee as set forth in Exhibit A-1 hereto and (ii) state the dollar amount of the participation or sub-participation purchased. The Register Administrative Borrower and Agent shall be available for inspection by Borrower entitled to conclusively rely on information contained in notices delivered pursuant to this paragraph. Notwithstanding the foregoing, each bank or other lending institution that is a member of the Farm Credit System designated as a Voting Participant in Schedule 13.1(k) hereto shall be a Voting Participant without delivery of a Voting Participant Notification and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (BOISE CASCADE Co)
Assignments and Participations. (a) With Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the prior written Revolving Loans, the Swing Loans and the Letters of Credit); PROVIDED, HOWEVER, that (i) (A) if any such assignment shall be of the assigning Lender's Foreign Revolving Credit Outstandings or US Revolving Credit Outstandings and related Revolving Credit Commitment, such assignment shall cover the same percentage of such Lender's Foreign Revolving Credit Outstandings or US Revolving Credit Outstandings, respectively, and related Revolving Credit Commitment, and (B) if any such assignment shall be of the assigning Lender's Term Loans and Term Loan Commitment, such assignment shall cover the same percentage of such Lender's Term Loans and Term Loan Commitment, and (ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed the US Obligors' Agent and the relevant Administrative Agent or conditioned, and shall not be required (1B) if an Event of Default has occurred and such assignment is continuing, or (2) in connection with an assignment being made to a Person that is a Lender or an Affiliate (other than individuals) or Approved Fund of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedsuch Lender, and shall not be required in connection with an assignment (iii) if such Eligible Assignee is not, prior to a Person that is the date of such assignment, a Lender or an Affiliate (other than individuals) or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the relevant Administrative Agent and the US Obligors' Agent (which consent shall not be unreasonably withheld or delayed); PROVIDED, HOWEVER, that, notwithstanding any Lender may assign other provision of this Section 11.2, the consent of the US Obligors' Agent shall not be required for any assignment until the Syndication Completion Date or which occurs when any Event of Default shall have occurred and delegate be continuing. Any such assignment need not be ratable as among the Term Loan Facility and Revolving Credit Facilities.
(b) The parties to one or more assignees (eacheach assignment shall execute and deliver to the relevant Administrative Agent, for its acceptance and recording, an "Assignee") all or any portion of the Obligations, the Revolver Commitments Assignment and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentAcceptance, together with payment instructionsany Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such execution, addressesdelivery, acceptance and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender recording and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and receipt by the relevant Administrative Agent from the assignee of an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing assignment fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From 3,500 from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender, and if such Lender under the Loan Documentswere an Issuer, of such Issuer hereunder and thereunder, and (ii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3those which survive the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of 134 an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon The Domestic Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information acting as it shall deem appropriate at agent for the time, continue to make its own credit decisions in taking or not taking action Lenders under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver CommitmentUS Facilities, and the other rights and interests of that Lender (Foreign Administrative Agent, acting as agent for the "Originating Lender") hereunder and Lenders under the other Loan Documents; providedForeign Revolving Credit Facility, however, that (i) the Originating Lender shall remain a "Lender" and each Administrative Agent acting solely for all purposes of this Agreement Section 11.2(c) and the other Loan Documents and the Participant receiving the participating interest in the Obligationsfor tax purposes only, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible as agent for the performance of relevant Borrowers under such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of BorrowerFacilities, shall maintain at its respective address referred to in Section 11.8 (or cause to be maintainedNOTICES, ETC.) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation recording of the names and addresses of the Lenders, applicable Lenders and Issuers and the commitment of, Commitments of and principal amount (and stated interest) of the Swing applicable Loans and Letter of Credit Obligations owing to, to each such Lender pursuant to the terms hereof and Issuer from time to time (the "REGISTER"). Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register”). The entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and Borrowerthe Loan Parties, Agent the Administrative Agents, the Lenders and the Lenders may Issuers shall, absent manifest error, treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder or as an Issuer, as applicable, for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and the Borrowers or any Lenders, Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the relevant Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the relevant Obligors' Agent. Within five Business Days after its receipt of such notice, the applicable Borrowers, at their own expense, shall, if requested by such assignee, execute and deliver to such Administrative Agent, new Notes to the order of such assignee in an amount equal to the Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has surrendered any Note for exchange in connection with the assignment and has retained Commitments hereunder, new Notes to the order of the assigning Lender in an amount equal to the Commitments retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B-1 (FORM OF REVOLVING CREDIT NOTE) or B-3 (FORM OF TERM NOTE) hereto, as applicable.
(e) In addition to the other assignment rights provided in this Section 11.2, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrowers or the Administrative Agents and (ii) any trustee for the benefit of the holders of such Lender's Securities; PROVIDED, HOWEVER, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(f) Each Lender may sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, Revolving Loans and Letters of Credit). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or other modifications of any provision of any Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, 135 waiver or other modification or consent would (i) reduce the amount, or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such participant under the Loan Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.7(b) (CONCERNING THE COLLATERAL AND THE COLLATERAL DOCUMENTS). In the event of the sale of any participation by any Lender, (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, and (D) the Borrowers, the Administrative Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Each participant shall be entitled to the benefits of Sections 2.14(d) (ILLEGALITY), 2.15 (CAPITAL ADEQUACY) and 2.16 (TAXES) as if it were a Lender; PROVIDED, HOWEVER, that anything herein to the contrary notwithstanding, the Borrowers shall not, at any time, be obligated to pay to any participant of any interest of any Lender, under Section 2.14(d) (ILLEGALITY), 2.13 (PAYMENTS AND COMPUTATIONS) or 2.15 (CAPITAL ADEQUACY), any sum in excess of the sum which the Borrowers would have been obligated to pay to such Lender in respect of such interest had such participation not been sold.
(g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the applicable Obligors' Agent, the Administrative Agents, such Issuer and such Lender, subject to the provisions under Section 11.2(c) above relating to the recordation of such assignment in the Register. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the effective date of such cessation, such Issuer's obligations to issue Letters of Credit pursuant to Section 2.4 (LETTERS OF CREDIT) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (each such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within 5 five (5) Business Days after having received notice thereof; and
(B) and with Agent and, solely in the prior written case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the Obligations, foregoing Persons,
(C) the Revolver amount of the Commitments and/or Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇'s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers and Agent (and Revolving Agent if applicable) 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's , shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitment shall be accompanied Commitments) an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Agent (the "Administrative Questionnaire") and of such Lender's Sterling Advancesall information and other documents required under the Patriot Act.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerRevolving Agent, the Collections of Borrower or its SubsidiariesBorrowers, 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 Section 16 (f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 17.916; provided that such Participant shall not be entitled to receive any greater payment under Section 16, disclose all documents and information which it now or hereafter may have relating with respect to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) greater payment results from a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest Change in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in Law that occurs after the Participant Register shall be conclusive absent manifest error, and acquired the applicable participation or the Borrower has specifically consented to 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 contrarygreater entitlement.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Term Loan Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1i) if an Event of Default has occurred and is continuing, (ii) in connection with any merger or consolidation of a Lender, or (2iii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xA) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (yB) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Parties and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i1) 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, (ii2) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii3) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Parties or the performance or observance by any Loan Party Parties of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
Assignments and Participations. (a) With No Obligor may assign ------------------------------ its respective rights or obligations hereunder or under the Notes or any other Credit Document without the prior written consent of Borrowerall of the Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans, its Notes, its Letter of Credit Interests and its Commitments (but only with the consent (which consent of Borrower shall not be unreasonably withheld, delayed withheld or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsdelayed) of a Lender (providedBorrower, thatthe Administrative Agent and the Lead Arranger and, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion case of the ObligationsRevolving Credit Commitments, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Issuing Lender); provided, however, that (i) no such -------- ------- consent by Borrower, the Issuing Lender, the Lead Arranger or the Administrative Agent shall be required in the case of any assignment may be made to a natural personanother Lender or any Lender's Affiliate or any Approved Fund of any Lender (in which case, the assignee and assignor Lenders shall give notice of the assignment to the Administrative Agent); (ii) no assignment may consent of Borrower need be made to a Loan Party, Affiliate obtained if any Default or Event of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor Default shall have occurred and be continuing; (iii) no assignment of Advances or Revolver Commitments may be made each assignment, other than to a Person that cannot (directly Lender or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros any Lender's Affiliate or any Approved Fund of any Lender and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender other than any assignment effected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation in connection with the interest so assigned syndication of the Commitments (unless Borrower and the Administrative Agent otherwise agree), shall be in an aggregate amount at least equal to an Assignee until $5.0 million unless the assigning Lender's exposure is reduced to $0; (iv) subject to (i) written notice above, assignments under the Revolving Facility will require the consent of the Issuing Lender; and (v) in no event may any such assignmentassignment be made to any Obligor or any of its Affiliates without consent of all Lenders. Any assignment of a Loan shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of a Loan shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan (if a Note was issued in respect thereof), together with payment instructions, addressesaccompanied by an instrument in writing substantially in the form of Exhibit F, and related information with respect to upon consent thereto by Borrower, 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), (iii) unless waived by Administrative --------- Agent, the assigning Lead Arranger and the Issuing Lender to the extent required above, one or Assignee has paid to Agent for Agent's separate account a processing fee more new Notes (if requested by the New Lender) in the same aggregate principal amount shall be issued to the designated assignee and the old Notes shall be returned by the Administrative Agent to Borrower marked "cancelled". Upon execution and delivery by the assignee to Borrower, the Administrative Agent and the Lead Arranger of $3,500an instrument in writing substantially in the form of Exhibit F, and (iv) any assignment of any portion upon consent thereto by Borrower, the Administrative --------- Agent and the Issuing Lender to the extent required above, and in the case of a Lender's Revolver Commitment Loan, upon appropriate entries being made in the Register the assignee shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided in such assignment with the consent of the Administrative Agent), the obligations, rights and obligations benefits of a Lender hereunder have been holding the Commitment(s), Loans (or portions thereof) and Letter of Credit Interests assigned to it pursuant (in addition to the Commitment(s), Letter of Credit Interests and Loans, if any, theretofore held by such Assignment assignee) and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that of such assignment, be released from the Commitment(s) (or portion(s) thereof) so assigned. At the time of each assignment pursuant to this Section 12.06(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(3) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 5.06 Certificate) described in Section 5.06(b). Upon any such assignment (other than to a Lender or any Affiliate of a Lender and other than in connection with the Lead Arranger's initial syndication of the Loans the Lead Arranger's next succeeding five assignments) the assignee Lender shall pay a fee of $3,500 to the Administrative Agent. Upon any such assignment, certain rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of survive as set forth in Section 1612.07.
(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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any A Lender may at any time sell or agree to sell to one or more commercial banks, financial institutionsother Eligible Persons a participation in all or any part of any Loans and Letter of Credit Interests held by it, or other Persons in its Commitments, in which event each purchaser of a participation (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and shall be entitled to the other rights and interests benefits of that Lender ----------- the provisions of Section 5 (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (ino Participant shall be -------- ------- entitled to receive any greater amount pursuant to Section 5 than the transferor Lender would have been entitled to receive in respect of the participation effected by such transferor Lender had no participation occurred) the Originating Lender shall remain with respect to its participation in such Loans, Letter of Credit Interests and Commitments as if such Participant were a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest said Section, but, except as otherwise provided in the ObligationsSection 4.07(c), the Revolver Commitments, and the shall not have any other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or benefits under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, Note or consent or waiver with respect to this Agreement or of any other Loan Credit Document would (A) extend the final maturity date 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 Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all . All amounts payable by Borrower hereunder to any Lender under Section 5 in respect of Loans, Letter of Credit Interests and under the other Loan Documents its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participation in such Loans, Letter of Credit Interests and Commitments, and as if such Lender were funding each of such Loan, Letter of Credit Interests and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interests and Commitments 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 any modification or amendment set forth in subclauses (except where applicable for purposes of Section 16I), except that(II), if amounts outstanding under this Agreement are due and unpaid, (III) or shall have been declared or shall have become due and payable upon the occurrence (VIII) of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect clause (a) of the Obligations. No Participant shall have the right proviso to participate directly in the making of decisions by the Lenders among themselvesSection 12.04.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at any time create a security interest in, or pledge, assign and pledge all or any portion of its rights under Loans and interest in this Agreement in favor of its Notes to any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and any Operating Circular issued by such Federal Reserve Bank and, in the case of a Lender that is an investment fund, any such Lender may assign or pledge any portion of its Loans and its Notes to its trustee in support of its obligations to its trustee, without notice to or consent of Borrower or the Bank of Canada may enforce Administrative Agent. No such pledge or security interest in any manner permitted under applicable lawassignment shall release the assigning Lender from its obligations hereunder.
(he) Each A Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (may furnish any information concerning Borrower or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest any Subsidiary in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and possession of such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time to assignees and participants (including prospective assignees and participants) subject, however, to the "Register”)provisions of Section 12.11. The entries in In addition, each of the Register shall be conclusive, and Borrower, Administrative Agent and the Lenders Lead Arranger may treat each Person whose name is recorded furnish any information concerning any Obligor or any of its Affiliates in the Register Administrative Agent's or the Lead Arranger's possession to any Affiliate of the Administrative Agent or the Lead Arranger. The Obligors shall assist any Lender (at such Lender's cost and expense, except as provided in the Commitment Letter in respect of syndication) in effectuating any assignment or participation pursuant to the terms hereof as a this Section 12.06 (including during syndication) in whatever manner such Lender hereunder for all purposes of this Agreementreasonably deems necessary, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticeincluding participation in meetings with prospective transferees.
Appears in 1 contract
Assignments and Participations. (a) With Each Lender shall have the prior written consent right at any time to assign all or any portion of Borrowerits Loans or its Commitment in an aggregate amount of not less than $5,000,000 to any Eligible Assignee that is approved by Mutual Risk (so long as no Default or Event of Default exists) and the Administrative Agent, which consent of Borrower approvals shall not be unreasonably withheld. In the case of any assignment of all or part of any Loan or any Commitment authorized under this Section 10.2(a), delayed or conditioned, and the assignee shall not be required (1) if an Event become a party to this Agreement as a Lender by execution of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) and assumption agreement substantially in the form of a Lender (Exhibit D hereto; provided, that, in each case, Borrower that (i) at such time Section 2.1 shall be deemed modified to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereofreflect the Commitment of such new Lender and of the existing Lenders, (ii) and with the prior written consent upon surrender of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") Notes evidencing all or any portion of any Loan so assigned, new Notes will be issued, at the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply Borrowers' expense to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender and to the extent that the aggregate amount assigning Lender (if requested by 44 Credit Agreement them), such new Notes to be assigned to all such new Lenders is at least $5,000,000in conformity with the requirements of Section 2.4 (with appropriate modifications); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no the Administrative Agent shall receive at the time of each such assignment, from the assignor or assignee Lender, the payment of a non-refundable assignment fee of Advances $3,500. To the extent of any assignment pursuant to this Section 10.2(a), the assignor Lender shall be relieved of its obligations hereunder with respect to its assigned Loans or Revolver Commitments may be made Commitment, and the assignee shall have, to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice extent of such assignment, together with payment instructionsthe same rights, addresses, benefits and related information obligations as a Lender with respect to such Loans or Commitment, including, without limitation, the Assigneeright to approve or disapprove actions which, 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)the terms hereof, (iii) unless waived by Agent, require the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion approval of a Lender's Revolver Commitment . At the time of each assignment pursuant to this Section 10.2(a) to an Eligible Assignee which is not already a Lender hereunder and which is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, such Eligible Assignee shall be accompanied by proportionate assignment of such Lender's US Advancesprovide to Mutual Risk and the Administrative Agent the appropriate Internal Revenue Service Forms (and, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances if applicable a Section 10.2(c)(ii) Certificate) described in Section 10.2(c) and of such Lender's Sterling Advancesto the Administrative Agent an Administrative Questionnaire.
(b) From and after the date that Agent notifies the assigning Each 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 the Loan Documents, and (ii) the assigning Lender shall, right to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell grant participations to one or more commercial banks, financial institutions, other banks or other Persons financial institutions (a "Participant"including another Lender) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsCommitment and/or Loans; provided, provided however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrowerthe participating bank or other financial institution shall not be a Lender hereunder for any purpose except, Agentif the participation agreement so provides, for purposes of Sections 2.9 and 2.10 (but only to the extent that the cost of such benefits to the applicable Borrower does not exceed the cost which such Borrower would have incurred in respect of such Lender absent the participation) and for purposes of Sections 10.05 and 10.17(b), (iv) the Loan Parties, the Administrative Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumsAgreement, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents; provided however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (except where applicable for purposes as between the assigning Lender and such participant) to any matter which (A) extends the Maturity Date as to such participant or any other date upon which any payment of Section 16)money is due to such participant, except that, if amounts outstanding under this Agreement are due and unpaid(B) reduces the rate of interest owing to such participant or any fee or any other monetary amount owing to such participant, 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 (C) reduces the amount of any installment of principal owing to such participant. Any Lender that sells a participation to any Person shall include in its participating interest were owing directly to it as participation agreement with such Person a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender covenant by such Person that such Person will comply with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents 10.2(c) as if such Person were a Lender and information which it now or hereafter may have relating to Parent provide that the Administrative Agent and its Subsidiaries and their respective businessesthe Borrowers shall be third party beneficiaries of such covenant.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(hc) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent is an assignee or transferee of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s an interest in the Swing Loans or other obligations under this Agreement pursuant to Section 10.2(a) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer) and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to Mutual Risk and the Administrative Agent, on the date of such assignment or transfer to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or W- 8BEN Parts I and II (or predecessor or successor forms) including such Lender's U.S. taxpayer identification number and certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a "Participant Register”). The entries bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or W-8BEN Parts I and II (or predecessor or successor forms) pursuant to clause (i) above, (X) a certificate substantially in the Participant Register shall form of Exhibit E hereto (a "Section 10.2(c)(ii) Certificate") stating that such Lender is not a "bank" within the meaning of 45 Credit Agreement Section 881(c)(3)(A) of the Code and (Y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN Part I only (or predecessor or successor form) certifying to such Lender's entitlement to complete exemption from United States withholding tax with respect to payments of interest to be conclusive absent manifest errormade under this Agreement and under any Note. In addition, each Lender agrees that, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to Mutual Risk and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or W- 8BEN (or predecessor or successor forms, or a Section 10.2(c)(ii) Certificate and Form W-8BEN Part I only (or predecessor or successor form), as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or it shall immediately notify Mutual Risk and the Administrative Agent of its inability to deliver any such form or certificate; provided, however, that such Lender shall treat each not be obligated to complete and deliver any form requiring disclosure of information or statements that it considers to be confidential or otherwise disadvantageous to disclose. Subject to the immediately succeeding sentence, and notwithstanding Section 2.9, the Borrowers shall be entitled, to the extent they are required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder or made on any other Loan Document for the account of any Lender which is not a United States Person whose name (as such term is recorded defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to Mutual Risk U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding. Notwithstanding anything to the contrary contained in the Participant Register preceding sentence or elsewhere in this Section 10.2(c), each Borrower agrees to pay additional amounts and to indemnify and hold harmless each Lender (without regard to the identity of the jurisdiction requiring the deduction or withholding), and reimburse such Lender upon its written request, in respect of any amounts deducted or withheld by it as described in the owner immediately preceding sentence as a result of such participation for all purposes any changes after the date of this Agreement notwithstanding in any notice applicable Law or treaty, or in the interpretation thereof, relating to the contrarydeducting or withholding of income or similar taxes.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) that are Eligible Transferees all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to BorrowerBorrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(ei) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Parent or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(ii) Each Participant shall be entitled to additional payments from the Borrowers pursuant to Section 16.1 as if such Participant were a Lender (and subject to the requirements and limitations imposed on such Lender with respect to such additional payments) if such Participant is treated as the beneficial owner for U.S. income Tax purposes (or other applicable Tax purposes) of the portion of the Loan with respect to which a participation is made. Each Originating Lender shall be entitled to continue receiving additional payments from the Borrowers pursuant to Section 16.1 with respect to any Loan notwithstanding the fact that such Originating Lender has assigned a participation in such Loan to a Participant if such Originating Lender is treated as the beneficial owner for U.S. income Tax purposes (and other applicable Tax purposes) of the portion of the Loan with respect to which a participation is made.
(iii) Each Originating Lender shall maintain, as a non-fiduciary agent of the Borrowers, a register (the “Participant Register”) as to the participations granted and transferred under Section 13.1(e)(i) containing the same information specified in Section 2.3(f) on the Register as if the each Participant were a Lender. Notwithstanding anything in the Agreement to the contrary, any participation made pursuant to Section 13.1(e)(i) shall be effective only upon appropriate entries with respect thereto being made in the Participant Register. This Section 13.1(e)(iii) shall be construed so that the Loans are at all times maintained in “registered form” within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and any related regulations (and any successor provisions).
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest Any other provision in the Swing Loans or other obligations under this Agreement (notwithstanding, unless an Event of Default has occurred or is continuing, without the "Participant Register”). written consent of the Parent in its sole discretion, neither Allied System Holdings, Inc., The entries in the Participant Register ComVest Group, ComVest Investment Partners III, LP, Spectrum, Black Diamond, Yucaipa nor any of their Affiliates shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the permitted to become an Assignee or a Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contraryhereunder.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received written notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party, or Affiliate of a Loan Party, shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, . Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesExchange Commission.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Oclaro, Inc.)
Assignments and Participations. (a) With the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1i) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a LenderLender and (ii) in the case of an assignment of any Commitment, Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (A) if a Default or Event of Default has occurred and is continuing, or (B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided that Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within five (5) Business Days after having received notice thereof), any Lender may assign and delegate to one or more assignees so long as in each case such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that neither Borrower nor any Affiliate of Borrower shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i1) 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, (ii2) 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(b14.1(b), and (iii3) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 16 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b14.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesCollections, 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 Participant shall be entitled to the benefits of Section 11.3 and Section 2.11(a) (subject to the requirements and limitations therein and otherwise in this Agreement, read as if a Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment; provided, however, that a Participant shall not be entitled to receive any greater payment under Section 11.3 and Section 2.11(a) than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawLaw.
(h) Each Lender that sells a participationAgent, acting solely for this purpose as a non-fiduciary agent an Agent of Borrower, shall maintain at one of its lending offices a copy of each assignment pursuant to this Section 14.1 delivered to it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and all principal and interest in respect of the Loans owing to, each Lender pursuant to the terms hereof from time to time (or the “Register”). Notwithstanding anything to the contrary in this Agreement, no assignment pursuant to this Section 14.1 shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 14.1(h). The entries in the Register shall be conclusive, in the absence of manifest error, and Borrower and each Lender shall treat each Person whose name is recorded therein pursuant to this Section 14.1(h) as a Lender hereunder for all purposes of this Loan Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection by Borrower and any Lender at any reasonable time during regular business hours and from time to time upon reasonable prior notice. The provisions of this Section 14.1(h) are intended to cause the Loans to be maintainedtreated as having been issued in “registered form” within the meaning of section 5f.103-1(c) of the Treasury Regulations and shall be interpreted and carried out in a manner consistent therewith.
(i) In addition, each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters records the name and address of each Participant and the principal amounts (and stated interest) of each participantParticipant’s interest in the Swing Loans or other obligations under this Agreement (the "“Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Loans or any other Obligations) to any Person except to the extent that such disclosure is required to establish that such Loans or Obligations are in “registered form” within the meaning of Section 5f.103-1(c) of the Treasury Regulations.
(j) Any other provision in this Agreement notwithstanding, Borrower hereby acknowledges that the Lenders and their Affiliates may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans. Borrower shall cooperate with the Lender and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lender in connection with the Securitization; provided that (i) The AgentBorrower is reimbursed for all out-of-pocket costs and expenses incurred in connection with effecting such Securitization, acting for this purpose as a non-fiduciary agent of Borrower, shall maintainincluding reasonable attorneys’ fees and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or cause materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify each Lender and its Affiliates, any rating agencies rating the Loans, or any party providing credit support or otherwise participating in the Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which such Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact by Borrower or any Affiliate of Borrower contained in any Loan Document or in any writing delivered by or on behalf of Borrower or any Affiliate of Borrower to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission by Borrower or any Affiliate of Borrower to state therein a material fact required to be maintainedstated therein, a copy of each Assignment and Acceptance delivered or necessary in order to it and a register for make the recordation statements therein, in light of the names circumstances under which they were made, not misleading, and addresses such indemnity shall survive any transfer by any Lender or its successors or assigns of the Lenders, Loans and the commitment of, and principal amount (and stated interestii) of the Swing Loans owing to, agreeing to reimburse each Lender pursuant to and its Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticeLiabilities.
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Technology Finance Corp)
Assignments and Participations. (aA) With No Obligor may assign ------------------------------ its respective rights or obligations hereunder or under the Notes or any other Credit Document without the prior written consent of Borrowerall of the Lenders.
(B) Each Lender may assign to any Eligible Person any of its Loans, its Notes, its Letter of Credit Interests and its Commitments (but only with the consent (which consent of Borrower shall not be unreasonably withheld, delayed withheld or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsdelayed) of a Lender (providedBorrower, thatthe Administrative Agent and the Arranger and, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion case of the ObligationsRevolving Credit Commitments, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Issuing Lender); provided, however, that (i) no such consent by -------- ------- Borrower, the Issuing Lender, the Arranger or the Administrative Agent shall be required in the case of any assignment may be made to a natural personanother Lender or any Lender's Affiliate or any Approved Fund of any Lender (in which case, the assignee and assignor Lenders shall give notice of the assignment to the Administrative Agent); (ii) no assignment may consent of Borrower need be made to a Loan Party, Affiliate obtained if any Default or Event of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor Default shall have occurred and be continuing; (iii) no assignment of Advances or Revolver Commitments may be made each assignment, other than to a Person that cannot (directly Lender or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros any Lender's Affiliate or any Approved Fund of any Lender and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender other than any assignment effected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation in connection with the interest so assigned syndication of the Commitments (unless Borrower and the Administrative Agent otherwise agree), shall be in an aggregate amount at least equal to an Assignee until $10 million unless the assigning Lender's exposure is reduced to $0; (iv) subject to (i) written notice above, assignments under the Revolving Facility will require the consent of the Issuing Lender; and (v) in no event may any such assignment, together with payment instructions, addresses, and related information assignment be made to any Obligor or any of its Affiliates without consent of all Lenders. Any assignment of a Loan shall be effective only upon appropriate entries with respect to thereto being made in the Assignee, have been given to Borrower Register (and Agent by each Note shall expressly so provide). Any assignment or transfer of a Loan shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Lender and the Assignee, Loan (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 if a Note was issued in accordance with Section 13.1(brespect thereof), (iii) unless waived accompanied by an instrument in writing substantially in the form of Exhibit F, --------- and upon consent thereto by Borrower, the Administrative Agent, the assigning Arranger and the Issuing Lender to the extent required above, one or Assignee has paid to Agent for Agent's separate account a processing fee more new Notes (if requested by the New Lender) in the same aggregate principal amount shall be issued to the designated assignee and the old Notes shall be returned by the Administrative Agent to Borrower marked "cancelled". Upon execution and delivery by the assignee to Borrower, the Administrative Agent and the Arranger of $3,500an instrument in writing substantially in the form of Exhibit F, and (iv) any assignment of any portion upon consent --------- thereto by Borrower, the Administrative Agent and the Issuing Lender to the extent required above, and in the case of a Lender's Revolver Commitment Loan, upon appropriate entries being made in the Register the assignee shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided in such assignment with the consent of the Administrative Agent), the obligations, rights and obligations benefits of a Lender hereunder have been holding the Commitment(s), Loans (or portions thereof) and Letter of Credit Interests assigned to it pursuant (in addition to the Commitment(s), Letter of Credit Interests and Loans, if any, theretofore held by such Assignment assignee) and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under the Commitment(s) (or portion(s) thereof) so assigned. At the time of each assignment pursuant to this Agreement Section 12.06(b) to a Person which is not already a Lender hereunder and which is not a United States person (and as such term is defined in Section 7701(a)(3) of the case of an Assignment and Acceptance covering all or Code) for Federal income tax purposes, the remaining portion of an assigning Lender's rights and obligations under this Agreement respective assignee Lender shall provide to Borrower and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive Administrative Agent the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
appropriate Internal Revenue Service Forms (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 any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeand, if applicable, a Section 5.06 Certificate) described in Section 5.06(b). Upon any such assignment (other than to a Lender or any Affiliate of a Lender and delivery other than in connection with the Arranger's initial syndication of notice the Loans the Arranger's next succeeding five assignments) the assignee Lender shall pay a fee of $3,500 to the assigning Lender pursuant to Section 13.1(b)Administrative Agent. Upon any such assignment, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee certain rights and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments obligations of the assigning Lender pro tantoshall survive as set forth in Section 12.07.
(eC) Any A Lender may at any time sell or agree to sell to one or more commercial banks, financial institutionsother Eligible Persons a participation in all or any part of any Loans and Letter of Credit Interests held by it, or other Persons in its Commitments, in which event each purchaser of a participation (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and shall be entitled to the other rights and interests benefits of that Lender ----------- the provisions of Section 5 (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (ino Participant shall be -------- ------- entitled to receive any greater amount pursuant to Section 5 than the transferor Lender would have been entitled to receive in respect of the participation effected by such transferor Lender had no participation occurred) the Originating Lender shall remain with respect to its participation in such Loans, Letter of Credit Interests and Commitments as if such Participant were a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest said Section, but, except as otherwise provided in the ObligationsSection 4.07(c), the Revolver Commitments, and the shall not have any other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or benefits under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, Note or consent or waiver with respect to this Agreement or of any other Loan Credit Document would (A) extend the final maturity date 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 Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all . All amounts payable by Borrower hereunder to any Lender under Section 5 in respect of Loans, Letter of Credit Interests and under the other Loan Documents its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participation in such Loans, Letter of Credit Interests and Commitments, and as if such Lender were funding each of such Loan, Letter of Credit Interests and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interests and Commitments 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 any modification or amendment set forth in subclauses (except where applicable for purposes of Section 16I), except that(II), if amounts outstanding under this Agreement are due and unpaid, (III) or shall have been declared or shall have become due and payable upon the occurrence (VIII) of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect clause (a) of the Obligations. No Participant shall have the right proviso to participate directly in the making of decisions by the Lenders among themselvesSection 12.04.
(fD) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at any time create a security interest in, or pledge, assign and pledge all or any portion of its rights under Loans and interest in this Agreement in favor of its Notes to any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and any Operating Circular issued by such Federal Reserve Bank and, in the case of a Lender that is an investment fund, any such Lender may assign or pledge any portion of its Loans and its Notes to its trustee in support of its obligations to its trustee, without notice to or consent of Borrower or the Bank of Canada may enforce Administrative Agent. No such pledge or security interest in any manner permitted under applicable lawassignment shall release the assigning Lender from its obligations hereunder.
(hE) Each A Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (may furnish any information concerning Borrower or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest any Subsidiary in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and possession of such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time to assignees and participants (including prospective assignees and participants) subject, however, to the "Register”)provisions of Section 12.11. The entries in In addition, each of the Register shall be conclusive, and Borrower, Administrative Agent and the Lenders Arranger may treat each Person whose name is recorded furnish any information concerning any Obligor or any of its Affiliates in the Register Administrative Agent's or the Arranger's possession to any Affiliate of the Administrative Agent or the Arranger. The Obligors shall assist any Lender (at such Lender's cost and expense, except as provided in the Commitment Letter in respect of syndication) in effectuating any assignment or participation pursuant to the terms hereof as a this Section 12.06 (including during syndication) in whatever manner such Lender hereunder for all purposes of this Agreementreasonably deems necessary, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticeincluding participation in meetings with prospective transferees.
Appears in 1 contract
Sources: Credit Agreement (Tmil Corp)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) to a Person that is Competitor, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an administrative questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, (vii) no participations shall be sold to any “lender”, “secured party” or “agent” under the Term Loan Credit Agreement unless such Person is a Lender on the Closing Date, and (vviii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank Bank, any central bank, the Farm Credit Funding Corp. or to any entity organized under the Farm Credit Act and the Bank of Canada such Person may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Commitments and Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Commitments and Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Commitments and Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register in the event it is required to the terms hereof have one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if a Default or an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each [Reserved]
(i) In the event that a Lender that sells a participationparticipations in the Registered Loan, acting solely for this purpose such Lender, as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed delayed, or conditioned, conditioned and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 and integral multiples of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (iA) no Term Loan Lender shall make any such assignment may be made if such assignment would result in more than four (4) Term Loan Lenders existing at any one time under this Agreement, unless prior to a natural personor in connection with such assignment, (ii) no assignment may be made to a one or more of the Revolving Lenders shall have exercised their Term Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor purchase rights under Section 2.15 and (iiiB) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties 127255152_10 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 any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 127255152_10 Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan, the Advances and/or other Obligations (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. This Section 13.1(h) shall be construed so that the Term Loan, the Advances and other Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC. In the case of any assignment by a Lender of all or any portion of the Term Loan, the Advances and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register meeting the requirements of Treasury Regulation Section 5f.103-1(c) on which it enters the name and address 127255152_10 of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to the contrarymaintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
(k) Notwithstanding anything in Section 13.1 to the "Register”). The entries contrary, any Farm Credit Lender that (a) has purchased a participation or sub-participation in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded Term Loans in the Register pursuant to minimum amount of $5,000,000 on or after the terms hereof as a Lender hereunder for all purposes of this AgreementClosing Date, notwithstanding (b) is, by written notice to the contraryAdministrative Borrower and Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Administrative Borrower and Agent to become a Voting Participant (to the extent such consent would be required pursuant to Section 13.1(a) if such transfer were an assignment rather than a sale of a participation or sub-participation), shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were a Term Loan Lender, on any matter requiring or allowing a Term Loan Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an assignee as set forth in Exhibit A-1 hereto and (ii) state the dollar amount of the participation or sub-participation purchased. The Register Administrative Borrower and Agent shall be available for inspection by Borrower entitled to conclusively rely on information contained in notices delivered pursuant to this paragraph. Notwithstanding the foregoing, each bank or other lending institution that is a member of the Farm Credit System designated as a Voting Participant in Schedule 13.1(k) hereto shall be a Voting Participant without delivery of a Voting Participant Notification and any Lenders, at any reasonable time and from time to time upon reasonable without the prior notice.wri
Appears in 1 contract
Sources: Credit Agreement (BOISE CASCADE Co)
Assignments and Participations. Subject to the conditions set forth in clause (aa)(ii) With below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if a Default or an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Administrative Borrower objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof) ; and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank. Assignments shall not be required in connection with subject to the following additional conditions: no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to an assignment Ineligible Institution, (ii) so long as no Event of Default has occurred and is continuing, to a Person that is Competitor, or (iii) to a Lender natural person, no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no each partial assignment may shall be made to a natural person, (ii) no as an assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate proportionate part of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified all the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.DM3\7893162.1DM3\7893162.7
Appears in 1 contract
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Agent and each Lender and their respective successors and assigns; PROVIDED, HOWEVER, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of Borrowereach Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Each Lender may, which with the written consent of Borrower the Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Term Loan); PROVIDED, HOWEVER, that (i) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Term Loan) (except such minimum amount shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with apply to an assignment by a Lender to an Affiliate of such Lender or a Person that is a fund or account managed by such Lender or an Affiliate of such Lender or its investment manager), (other than individualsii) of a Lender (provided, that, in the parties to each case, Borrower such assignment shall be deemed execute and deliver to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Agent a processing and recordation fee of Agent shall not be unreasonably withheld, delayed or conditioned, and $5,000 (except the payment of such fee shall not be required in connection with an assignment to a Person that is by a Lender or to an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in or a minimum amount (unless waived fund or account managed by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any such Lender or (yits investment manager) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment written consent of Advances or Revolver Commitments may the Agent shall be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender required in connection with the interest so assigned any assignment by a Lender to an Assignee until (i) written notice Affiliate of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent Lender or a fund or account managed by such Lender or an Affiliate of such Lender or its investment manager. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least 3 Business Days after the delivery thereof to the Agent (or such shorter period as shall be agreed to by the Agent and the Assignee, (ii) parties to 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(bassignment), (iiiA) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account assignee thereunder shall become a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a "Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 " hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, however, that nothing contained herein . The Agent shall release any assigning provide the Administrative Borrower with notice of each assignment by a Lender from obligations that survive which requires the termination Agent's consent pursuant to this Section 12.07(b) promptly after the effectiveness of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16assignment.
(ci) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (iiB) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iiiC) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (ivD) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender the Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (vE) such Assignee assignee appoints and authorizes the Agent to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (viF) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(dii) Immediately The Agent shall, on behalf of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "REGISTER") for the recordation of the names and addresses of the Lenders and the principal amount of the Term Loan (the "REGISTERED LOANS") from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon Agent's reasonable prior notice. In the case of any assignment pursuant to Section 12.07(b)(iii), the assigning Lender shall maintain a comparable register on behalf of the Borrower.
(iii) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes subject to such assignment, the required processing feeAgent shall, if applicablethe Agent consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register.
(iv) 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 delivery each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agent shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tantocontrary.
(ev) In the event that any Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (the "PARTICIPANT REGISTER"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(vi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall provide the Agent and the Lender with a completed Internal Revenue Service Form W-8BEN (Certificate of Foreign Status) or a substantially similar form for such purchaser, participant or any other affiliate who is a holder of beneficial interests in the Registered Loan.
(c) Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in or to all or any a portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and obligations under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations(including, the Revolver Commitmentswithout limitation, and the other rights and interests all or a portion of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating its Term Loan); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrower, Agent, and the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Term Loan, (ivB) no Lender shall transfer action directly effecting an extension of the due dates or grant any participating a decrease in the rate of interest payable on the Term Loan or the fees payable under which the Participant has the right to approve any amendment tothis Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any consent or waiver with respect to, Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document, except ). The Loan Parties agree that each participant shall be entitled to the extent such amendment to, or consent or waiver benefits of Section 2.08 and Section 4.05 of this Agreement with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder its participation in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawTerm Loan as if it was a Lender.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an a Default or Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) Agent.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to (i) a Competitor, unless an Event of Default has occurred and with the prior written consent of Agentis continuing under Section 8.1, which consent of Agent shall not 8.4 or 8.5, or (ii) a natural person,
(B) no assignment may be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment made to a Person that is a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Agent (the "Administrative Questionnaire") and of such Lender's Sterling Advancesall information and other documents required under the Patriot Act.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrower, each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Each Lender may (x) with the written consent of the Collateral Agent (which consent of Borrower shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), assign to one or more other lenders or other entities all or a portion of its rights and shall not be required obligations under this Agreement with respect to (1A) if an Event all or a portion of Default has occurred its Term Loan Commitment and is continuingany Term Loan made by it, or (2B) in connection with an assignment to all or a Person that is a Lender or an Affiliate portion of its Delayed Draw Term Loan Commitment and any Delayed Draw Term Loan made by it, and (other than individualsy) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, each Agent (which consent of Agent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") other lenders or other entities all or any a portion of the Obligations, the Revolver Commitments and the other its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it; provided, however, that (i) such assignment is in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentLender’s Commitment) of $5,000,000 (except such minimum amount shall not apply to an assignment by a Lender to (x) an assignment or delegation by any Lender to any other Affiliate of such Lender or an Affiliate a Related Fund of any such Lender or (y) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender each other to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof); provided, however, that (i) no assignment may be made to a natural person, (ii) so long as no Event of Default has occurred and is continuing, such assignment may is made in consultation with (but without the requirement of consent of) the Borrower (except such consultation shall not be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender required in connection with the interest so assigned an assignment by a Lender to another Lender, an Assignee until (i) written notice Affiliate of such assignmentLender, together with payment instructionsa Related Fund of such Lender, addressesor W▇▇▇▇ Fargo Foothill, 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 Inc. or 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(bAffiliates), (iii) unless waived by except as provided in the last sentence of this Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the assigning Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required (y) in connection with an assignment by a Lender to an Affiliate of such Lender or Assignee has paid to Agent for a Related Fund of such Lender or (z) if Collateral Agent's separate account a processing fee , in the amount its sole discretion, waives payment of $3,500such fee), and (iv) no written consent of the Collateral Agent or the Administrative Agent shall be required (1) in connection with any assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment the business or loan portfolio of such Lender's US Advances. Upon such execution, of such Lender's Canadian Dollar Advancesdelivery and acceptance, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From from and after the effective date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed specified in each Assignment and Acceptance Acceptance, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and theretoAcceptance to the Agents or to any other Person (a “Related Party Assignment”); provided, however, that nothing contained herein shall release any (I) the Borrower and the Administrative Agent may continue to deal solely and directly with such assigning Lender from obligations that survive until an Assignment and Acceptance has been delivered to the termination of this AgreementAdministrative Agent for recordation on the Register, including (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender's obligations under Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 15 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Section 17.9(a); Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and provided, for greater certainty that both (IV) an Assignment and Acceptance between the assigning Lender and the Assignee an Affiliate of such Lender or a Related Fund of such Lender shall be entitled to rely effective as of the date specified in such Assignment and Acceptance and recorded on the provisions of Related Party Register (as such term is defined in Section 1612.07(d) herein).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participationAdministrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the LendersLenders and the Commitments of, and the commitment of, and principal amount of the Loans (and stated interestinterest thereon) (the “Registered Loans”) and Letter of the Swing Loans Credit Obligations owing to, to each Lender pursuant to the terms hereof from time to time (time. Subject to the "Register”last sentence of this Section 12.07(d). The , the entries in the Register shall be conclusiveconclusive and binding for all purposes, absent manifest error, and the Borrower, Agent the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any LendersLender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (the “Related Party Register”) comparable to the Register on behalf of the Borrower. Any such Related Party Register shall be available for inspection by the Borrower, any Agent and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon receipt by the Administrative Agent of an Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.
(f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon, notwithstanding notice to the contrary.
(g) In the event that any Lender sells participations in a Registered Loan, such Lender shall maintain a register for this purpose as a non-fiduciary agent of the Borrower on which it enters the name of all participants in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan that is the subject of the participation (the “Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. Any such Participant Register shall be available for inspection by the Borrower, any Agent and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Non-U.S. Lender who is assigned an interest in any portion of such Registered Loan pursuant to an Assignment and Acceptance shall comply with Section 2.08(d).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, all or a portion of its Commitments, the Loans made by it, and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or the Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.08 and Section 4.05 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
Appears in 1 contract
Sources: Financing Agreement (PRG Schultz International Inc)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person, of a Lender Loan Party,
(B) no assignment may be made to a Loan Party or an Affiliate Affiliate
(other than individualsC) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇'s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender▇▇▇▇▇▇'s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower hereunder and Borrowers hereunder, other than amounts payable under the other Loan Documents Section 16, shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of any Loans (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. The Register and any register for Affiliate transfers are intended to be maintained such that the Revolving Loans are in registered form for the purposes of the IRC.
(i) In the event that a Lender sells participations in the Registered Loan, such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under the IRC, including under Section 5f.103-1(c) of the United States Treasury Regulations or its successor. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (GoPro, Inc.)
Assignments and Participations. (a) With the prior written consent of BorrowerAgent and, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an so long as no Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of AgentAdministrative Borrower, which consent of Agent consents shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "“Assignee"”; provided, however, that no Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Borrowers and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 (which has been executed by Agent and the Administrative Borrower, to the extent that consent of Agent or Administrative Borrower to the relevant assignment is required) and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrowers or the performance or observance by any Loan Party Borrowers of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 AgreementAgreement (and subject to the provisions of Section 15.12 as if such Participant were a Lender). 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, BorrowerBorrowers, the Collections of any Borrower or its Restricted Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Restricted Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Advances (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Advances to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of the Advances to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (Stock Building Supply Holdings, Inc.)
Assignments and Participations. (a) With the prior written consent of BorrowerBorrowers, which consent of Borrower Borrowers shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1i) if an Event of Default has occurred and is continuing, or (2ii) in connection with the syndication of the Commitments and the Obligations by ▇▇▇▇▇ Fargo to the initial Lenders party hereto as of the date hereof (the “Primary Syndication”); provided, that, ▇▇▇▇▇ Fargo shall consult with Borrowers in connection with such Primary Syndication (it being understood that in no event shall ▇▇▇▇▇ Fargo be required to obtain Borrowers’ consent with respect to any assignment made in connection with such Primary Syndication)), and (ii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, thatexcept, in each case, Borrower shall be deemed to have consented to a proposed Defaulting Lender or its Affiliates, which assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereofshall not be permitted) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that, no Loan Party, Affiliate of a Loan Party, Defaulting Lender, or Affiliate of a Defaulting Lender shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xA) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (yB) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural personthat, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i1) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower Borrowers and Agent by such Lender and the Assignee, (ii2) such Lender and its Assignee have delivered to Borrower Borrowers 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 (iii3) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that that, nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrowers or the performance or observance by any Loan Party Borrowers of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that that, (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and Parent, its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of its Commitment (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its Commitment to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an any Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each In the event that a Lender that sells a participationparticipations in the Registered Loan, acting solely for this purpose such Lender, as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of Borrowereach Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (c) below, which each Lender may assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Commitment and any Loan made by it with the prior written consent of the Borrower shall (such consent not to be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person delayed); provided that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, the Borrower shall be deemed to have consented to a proposed any such assignment unless Borrower objects it shall have objected thereto by written notice to the Administrative Agent within 5 10 Business Days after having received notice thereof) and with the prior ; provided, however, that no written consent of Agent, which consent of Agent the Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (A) in connection with an any assignment to a Person that is by a Lender or an Affiliate (other than individuals) of to a Lender, an Affiliate of such Lender or a Related Fund of such Lender, (B) if such assignment is in connection with any Lender may assign and delegate to one merger, consolidation, sale, transfer, or more assignees (each, an "Assignee") other disposition of all or any substantial portion of the Obligations, the Revolver Commitments and the other rights and obligations business or loan portfolio of such Lender, or (C) in connection with any assignment by a Lender hereunder and under during the other Loan Documents, continuance of an Event of Default.
(c) Assignments shall be subject to the following additional conditions: (i) Each such assignment shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (x) an assignment or delegation by any a Lender to any other Lender or (A) a Lender, an Affiliate of any such Lender or a Related Fund of such Lender or (yB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to 5,000,000 or a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount multiple of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and 1,000,000 in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and theretoexcess thereof); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.;
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Appgate, Inc.)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses, so long as such potential assignee or participant has previously agreed in writing to keep such documents and information confidential pursuant to Section 17.9 as if it were a Lender hereunder.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the 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 Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Credit Agreement (EGAIN Corp)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 ten Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Default or Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party or, so long as no Default or Event of Default has occurred and is continuing, to a Disqualified Institution, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release -120- such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Revolving Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 Term Loans and other Obligations owed to it) to one or more assignees that is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than individualsnatural persons) of a Lender (providedunder common control with such Lender or a Related Fund of such Lender; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 three (3) Business Days after having received notice thereof; and
(B) and with Agent (other than pursuant to Section 9.4).
(ii) Assignments shall be subject to the prior written consent of Agent, which consent of Agent shall not following additional conditions:
(A) no assignment may be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment made to a Person that is natural person;
(B) no assignment may be made to a Lender Loan Party or an Affiliate of a Loan Party, or to Sponsor or an Affiliate of Sponsor, and, so long as no Event of Default has occurred and is continuing, no assignment may be made to a Competitor (other than individualspursuant to Section 9.4);
(C) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion the amount of the Obligations, the Revolver Commitments Term Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by AgentAgent and, unless an Event of Default has occurred and is continuing, Borrower) of $5,000,000 1,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender under common control with such Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000);
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ;
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500;
(G) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate Agent (the “Administrative Questionnaire”); and
(H) the assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesis recorded in the Register.
(b) From and after the date that Agent notifies receives 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 feefee and the assignment is recorded in the Register, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, the recordation of the assignment in the Register, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments and/or arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender (other than the waiver of mandatory prepayments and rescission of acceleration), and (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, Sponsor or an Affiliate of Sponsor, (vii) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 (viii) no participation shall be effective until recorded in the Participant Register. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any funding or financing source, or any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such funding or financing source or Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Other than in connection with an assignment by a Lender that sells of all or any portion of its portion of any Loans to an Affiliate of such Lender or a participationRelated Fund of such Lender (i) the Loan (and the registered note, acting solely 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 Loan (and the registered note, if any, evidencing the same, which shall be made payable to the relevant Lender and its registered assigns) 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 Term 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 this 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 Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain a register comparable to the Register (the “Related Party Register”). No assignment by a Lender to an Affiliate of such Lender or cause to a Related Fund shall be maintainedeffective until it is recorded in the Related Party Register.
(i) In the event that a Lender sells participations in any Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain a register on which it enters the name and address of each Participant all participants in the Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries A 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 ten (10) Business Days after having received notice thereof) thereof (it being acknowledged and with agreed that such objection by Borrower may be based on Borrower’s demonstration, to the prior written consent satisfaction of Agent, which consent of Agent shall not be unreasonably withheldin its Permitted Discretion, delayed or conditioned, and shall not be required in connection with an assignment to a Person that the proposed assignee is a Lender direct business competitor (or an Affiliate (other than individualsthereof) of a Borrower or any of its Subsidiaries); and
(B) Agent, Swing Lender, any Lender and Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may assign and delegate be made to one a natural person,
(B) no assignment may be made to a Loan Party or more assignees an Affiliate of a Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ,
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall maintain a written register of each Participant to whom it has sold all or any portion of its Obligations, such register to reflect the date of sale and face amount or percentage interest sold, and shall not permit any Participant to transfer its interest in the Obligations except through the register maintained by the Originating Lender, (iii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iiiiv) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (ivv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (vvi) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower(such consent not to be unreasonably withheld or delayed) of:
(A) Borrowers; provided, which that no consent of Borrower Borrowers shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender or Loan Party, an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion Sponsor Affiliated Entity,
(C) the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolving Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). 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 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 recorded 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), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
(i) In the event that a Lender sells participations in its Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or otherwise comply with the IRC. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(j) The Borrowers agree that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.1(b); provided that such Participant (i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause agrees to be maintainedsubject to the provision of Section 14.2 as if it were an assignee under Section 13.1(b) and (ii) shall not be entitled to receive any greater payment under Section 16 with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(k) Agent shall make a copy of each Assignment and Acceptance delivered to it and a register the Register available for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With (i) the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1A) if a Default or an Event of Default has occurred and is continuing, or (2B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof), and (ii) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as in each case such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that neither Borrower nor any Affiliate of Borrower shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (iI) 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 L▇▇▇▇▇ and the Assignee, (iiII) 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(b14.1(b), and (iiiIII) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.3 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 L▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 16 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b14.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesCollections, 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 Participant shall be entitled to the benefits of Section 11.3 and Section 16.11 (subject to the requirements and limitations therein, under Section 15.2 and otherwise in this agreement, read as if a Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment; provided, however, that a Participant shall not be entitled to receive any greater payment under Section 11.3 and Section 16.11 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businessesbusiness.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Technology Finance Corp)
Assignments and Participations. (a) With (i) the prior written consent of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1A) if a Default or an Event of Default has occurred and is continuing, or (2B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, provided that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof), and (ii) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as in each case such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that neither Borrower nor any Affiliate of Borrower shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund fund or account managed by any such new Lender or an Affiliate of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (iI) 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, (iiII) 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(b14.1(b), and (iiiIII) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.3 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 16 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions ) of Section 16this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b14.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)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 and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesCollections, 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 Participant shall be entitled to the benefits of Section 11.3 and Section 16.11 (subject to the requirements and limitations therein, under Section 15.2 and otherwise in this agreement, read as if a Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment; provided, however, that a Participant shall not be entitled to receive any greater payment under Section 11.3 and Section 16.11 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreementparticipation, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Technology Finance Corp)
Assignments and Participations. (a) With the prior written consent request of Borrower, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or and (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (a) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed delayed, or conditioned, conditioned and shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Lender; provided that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) , and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments Term Loan and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 and integral multiples of $1,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's ’s separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments Term Loan arising therefrom. The Revolver Commitment portion of the Term Loan allocated to each Assignee shall reduce such Revolver Commitments the portion of the Term Loan of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitmentportion of the Term Loan, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver CommitmentsTerm Loan, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Term Loan and/or other Obligations (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Term Loan and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. This Section 13.1(h) shall be construed so that the Term Loan and other Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC. In the case of any assignment by a Lender of all or any portion of the Term Loan and/or other Obligations to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register meeting the requirements of Treasury Regulation Section 5f.103-1(c) on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation on the Participant Register. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for all purposes of this Agreement notwithstanding any notice to the contrarymaintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
(k) Notwithstanding anything in Section 13.1 to the "Register”). The entries contrary, any Farm Credit Lender that (a) has purchased a participation or sub-participation in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded Term Loans in the Register pursuant to minimum amount of $5,000,000 on or after the terms hereof as a Lender hereunder for all purposes of this AgreementClosing Date, notwithstanding (b) is, by written notice to the contraryAdministrative Borrower and Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Administrative Borrower and Agent to become a Voting Participant (to the extent such consent would be required pursuant to Section 13.1(a) if such transfer were an assignment rather than a sale of a participation or sub-participation), shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were a Term Loan Lender, on any matter requiring or allowing a Term Loan Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an assignee as set forth in Exhibit A-1 hereto and (ii) state the dollar amount of the participation or sub-participation purchased. The Register Administrative Borrower and Agent shall be available for inspection by entitled to conclusively rely on information contained in notices delivered pursuant to this paragraph. Notwithstanding the foregoing, each bank or other lending institution that is a member of the Farm Credit System designated as a Voting Participant in Schedule 13.1(k) hereto shall be a Voting Participant without delivery of a Voting Participant Notification and without the prior written consent of the Administrative Borrower and Agent. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any Lenders, at any reasonable time and from time to time upon reasonable prior noticeassignee or participant of such Voting Participant that is not otherwise a Voting Participant.
Appears in 1 contract
Assignments and Participations. (a) With Subject to the following sentence, each Lender (an "Assignor") may assign its Rights and obligations as a Lender under the Loan Papers to one or more Eligible Assignees pursuant to an Assignment and Acceptance, so long as (i) each assignment shall be of a constant, and not a varying percentage of all Rights and obligations thereunder, (ii) each Assignor shall obtain in each case the prior written consent of BorrowerAdministrative Agent, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned(iii) each Assignor shall in each case pay a $3,500 processing fee to Administrative Agent, and shall not (iv) no such assignment is for an amount less than $5,000,000. Assignments and other transfers (except participations) with respect to each Lender's participation in a given Letter of Credit may only be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and made with the prior written consent of the Administrative Agent. Within five Business Days after Administrative Agent receives notice of any such assignment, the Company shall execute and deliver to Administrative Agent, which consent in exchange for the Notes issued to Assignor, new Notes to the order of Agent such Assignor and its assignee in amounts equal to their respective Specified Percentages of the Commitment. Such new Notes shall not be unreasonably withhelddated the effective date of the assignment. It is specifically acknowledged and agreed that on and after the effective date of each assignment, delayed or conditioned, the assignee shall be a party hereto and shall not be required in connection with an assignment to a Person that is have the Rights and obligations of a Lender or an Affiliate under the Loan Papers. General Communication, Inc. - Form 8-K Page 109
(other than individualsb) of a Lender, any Each Lender may assign and delegate sell participations to one or more assignees (each, an "Assignee") Persons in all or any portion of the Obligations, the Revolver Commitments and the other rights its Rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000)Papers; provided, however, that (i) no assignment may be made to a natural personsuch Lender's obligations under the Loan Papers shall remain unchanged, (ii) no assignment may be made such Lender shall remain solely responsible to a Loan Partythe other parties hereto for the performance of such obligations, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment such Lender shall remain the holder of Advances its Notes for all purposes of the Loan Papers, (iv) the participant shall be granted the Right to vote on or Revolver Commitments may be made consent to a Person that cannot only those matters described in Sections 10.01(a), (directly or through an Applicable Designeeb), (c) lend to Borrower in Dollarsand (d), Canadian Dollars(v) each GCI Entity, Euros Administrative Agent, and Sterling; provided, further, that Borrower and Agent may other Lenders shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 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, Papers and (iivi) 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 no such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of participation is for an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16amount less than $5,000,000.
(c) By executing and delivering an Assignment and AcceptanceAny Lender may, 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 any assignment or the executionparticipation, legalityor proposed assignment or participation, 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 disclose to the financial condition assignee or participant, or proposed assignee or participant, any information relating to any GCI Entity furnished to such Lender by or on behalf of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderGCI Entity.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or Notwithstanding any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of provision set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any each Lender may at any time create a security interest in, or pledge, in all or any portion of its rights Rights under and interest in this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawSystem.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. Notwithstanding anything to ------------------------------ the contrary in this Section 11.07: (i) under no circumstances may any Lender pledge, assign or transfer any of its rights hereunder, or under the Notes, to any Person that is a producer of steel products that directly competes with Borrower.
(a) With This Agreement and the Notes shall be binding upon and inure to the benefit of the Borrower and the Lender Group and their respective successors and assigns; provided , however, that (i) the Borrower may not assign or transfer -------- any of its rights hereunder, or under the Notes, without the prior written consent of Borrower, which the Lender Group and any such assignment without the Lender Group's prior written consent of Borrower shall not be unreasonably withheld, delayed or conditionednull and void, and shall not be required (1ii) if an Event subject to compliance with subsection (f) below, any member of Default has occurred and is continuingthe Lender Group may pledge, assign or transfer any of its rights hereunder, or (2) in connection with an assignment under the Notes, to a any Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written without notice to Agent within 5 Business Days after having received notice thereof) and with or the prior written consent of Agentthe Borrower. Except as provided in this Section 11.07, this Agreement shall not inure to the benefit of any party other than the Borrower and the Lender Group.
(b) Subject to the other provisions of this Section 11.07, any member of the Lender Group may at any time sell, assign or participate to an Affiliate of such member of the Lender Group or any other Person its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans made by it, and the Notes held by it) without notice to or the consent of the Borrower. The Borrower shall execute and deliver such Notes and any amendment or other modification restatement of this Agreement or any Loan Document as may be requested by such member of the Lender Group to reflect any such sale or assignment.
(c) the Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of each Lender as the registered owner of the Loans 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 accompanied by a written instrument of assignment or sale duly executed by) the holder of such Registered Note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new Registered Notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the Registered Note, if any evidencing the same), the 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 payments thereon and for all other purposes, notwithstanding notice to the contrary.
(d) In the event that any Lender sells participations in the 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.
(e) Any foreign Person who purchases or is assigned or participates in any portion of such Loan shall provide the Borrower and Agent (in the 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.
(f) Any Lender may, with the written consent of Agent (which consent shall not be unreasonably withheld, delayed or conditioned, and withheld nor shall not it be required in connection with respect to an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lenderthe Term Loans), any Lender may assign and delegate to one or more assignees (each, 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 all, or any portion part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 500,000 (except provided that no such minimum amount shall not apply to (x) be required in the case of an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which Assignee that is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000assigning Lender); provided, however, that (i) no assignment may be made to a natural personBorrower, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to -------- ------- deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, addresses and related information with respect to the Assignee, shall have been given to Borrower 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 agreement, in form and substance satisfactory to Agent ("Assignment and Acceptance Acceptance"); and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) unless waived by Agent, the assigning assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $3,5002,500. Anything contained herein to the contrary notwithstanding, and (iv) the consent of Agent shall not be required if such assignment is in connection with any assignment merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment the business or loan portfolio of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(bg) From and after the date that Agent notifies the assigning assignor Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, and payment of the required above referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.311.15) and be released from any future its obligations under this Agreement (except with respect to Section 12.05) (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, howeverand such assignment shall effect a novation among Borrower, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreementassignor Lender, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16Assignee.
(ch) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i1) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv4) such Assignee will, independently and without reliance upon Agent, such assigning Lender Lender, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ; (v5) such Assignee appoints and authorizes each of Agent to take such actions action as Agent (as the case may be) on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, Agent (as the case may be) by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto, ; and (vi6) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(di) Immediately upon Agenteach Assignee's receipt of making its processing fee payment under the required processing fee, if applicable, Assignment and delivery of notice to the assigning Lender pursuant to Section 13.1(b)Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment Commitments allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.. --- -----
(ej) Any Subject to Section 11.07(d), any Lender may at any time time, with the written consent of Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its the Obligations, its Revolver Commitmentthe Commitments, and the other rights and interests of that Lender (the "Originating originating Lender") hereunder and under the other Loan DocumentsDocuments (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating originating Lender's obligations -------- ------- under this Agreement shall remain unchanged, (ii) the Originating originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and the Lenders Agent shall continue to deal solely and directly with the Originating originating Lender in connection with the Originating originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to to, this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, ; (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, ; (C) release all or substantially all a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, ; (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), Lender; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and ; (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.; and
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Revolver Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person,
(B) no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of -214- LEGAL_US_W # 114834644.8114834644.17 which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as -215- LEGAL_US_W # 114834644.8114834644.17 are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreasesdecrease the amount or postponespostpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement 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 in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.-216- LEGAL_US_W # 114834644.8114834644.17
Appears in 1 contract
Sources: Credit Agreement (Sharecare, Inc.)
Assignments and Participations. (a1) With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1A) if an Event of Default has occurred and is continuing, or (2B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, other than a Defaulting Lender and (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof2) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, other than a Defaulting Lender, any Lender may assign and delegate to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"; provided, however, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by AgentAgent and, so long as no Event of Default shall have occurred and be continuing, Administrative Borrower) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Administrative Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) such assignment is entered into the Register in accordance with Section 13.1(h), and (iv) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances5,000.
(b) From and after the date that Agent notifies the assigning Lender (with a copy to BorrowerBorrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, and such assignment has been entered into the Register in accordance with Section 13.1(h), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party or any of its Subsidiaries of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, and (v) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerBorrowers, the Collections of Borrower Borrowers or its their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent each Loan Party and its their Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, shall maintain (or cause to be maintained) , a register (the "Register") on which it enters the name and address of each Participant Lender as the registered owner of the Revolver Commitment (and the principal amounts amount thereof and stated interest thereon and the portion of principal amount and interest of the Obligations assigned or transferred)) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and stated interestthe 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 participant’s interest 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 Swing Loans same aggregate principal amount shall be issued to the designated assignee(s) or other obligations under this Agreement (the "Participant Register”transferee(s). The entries in Prior to the Participant Register shall be conclusive absent manifest errorregistration of assignment or sale of any Registered Loan (and the registered note, and such Lender if any evidencing the same), Borrowers shall treat each the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is recorded in the Participant Register registered as the owner thereof for the purpose of such participation receiving all payments thereon and for all purposes of this Agreement other purposes, notwithstanding any notice to the contrary.
(i) The Agent. In the case of any assignment by a Lender of all or any portion of its Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, acting for this purpose as a non-fiduciary agent and which assignment is not recorded in the Register, the assigning Lender, on behalf of BorrowerBorrowers, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and maintain a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant comparable to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, conclusive and BorrowerBorrowers, Agent and the Lenders may shall treat each Person 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 in the absence of manifest or demonstrable error. Notwithstanding anything to the contrary, any assignment of any Obligation shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by Borrower Borrowers, Agent and any LendersLender (solely with respect to its Obligations and/or Commitment), at any reasonable time and from time to time upon reasonable prior notice. This Section shall be construed so that the Obligations are at all times maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and any related regulations (and any successor provisions).
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register in the extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
Appears in 1 contract
Assignments and Participations. (a) With None of the Obligors may assign any of its rights or obligations hereunder or under the Notes without the prior written consent of Borrowerall of the Lenders and the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its Commitments, and, if such Lender is a Facility A Revolving Credit Lender, its Letter of Credit Interest, but only with the consent of, in the case of its outstanding Commitments, PGI and the Administrative Credit Agreement ---------------- Agent (neither of which consent of Borrower consents shall not be unreasonably withheld) and, delayed in the case of a Facility A Revolving Credit Commitment and Letter of Credit Interest, the Issuing Lender; provided that
(i) no such consent by the Administrative Agent or conditionedPGI shall be required in the case of any assignment to another Lender, and no such consent by PGI shall not be required (1) if an Event of Default has under Section 10((f) or 10(g) hereof shall have occurred and is be continuing;
(ii) except to the extent the Administrative Agent shall otherwise consent, or (2) in connection with an any partial assignment to a Person that is a Lender or an Affiliate (other than individualsto another Lender) of shall be in an amount at least equal to U.S. $5,000,000;
(iii) each such assignment by a Lender of its Loans, Note or Commitment of any Class, or Letter of Credit Interest (provided, that, in each case, Borrower the case of the Facility A Revolving Credit Lenders) shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with made in such manner so that the prior written consent same portion of Agentits Loans, which consent of Agent shall not be unreasonably withheld, delayed or conditionedNote, and shall not be required in connection with an Commitment of such Class (and, if applicable) Letter of Credit Interest and Currency is assigned to the respective assignee;
(iv) each such assignment to a Person that is by a Lender or an Affiliate (other of the Loans of any Class having more than individuals) of a Lenderone Borrower, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any shall be made in such manner so that the same portion of the Obligations, the Revolver Commitments and the other rights and obligations of Loans made to each such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which Borrower is an Affiliate of each other or a Related Fund of such new Lender assigned to the extent that the aggregate amount respective assignee; and
(v) each such assignment shall be effected pursuant to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance in substantially the form of Exhibit J hereto and the assignor and assignee shall deliver to PGI, the Administrative Agent has notified and (if the assigning assignment is of Facility A Revolving Credit Commitments and Letter of Credit Interest) the Issuing Lender a fully executed copy thereof. Upon execution and delivery by the assignor and the assignee to PGI, the Administrative Agent and (if applicable) the Issuing Lender of its receipt thereof in accordance with Section 13.1(b)such Assignment and Acceptance, (iii) unless waived and upon consent thereto by the Administrative Agent, the assigning Issuing Lender or Assignee has paid and PGI to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise consented to by the Administrative Agent for Agent's separate account a processing fee in and the amount of $3,500Issuing Lender), the obligations, rights and (iv) any assignment of any portion benefits of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US AdvancesLender hereunder holding the Commitment(s), of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 Loans and, if applicable, payment Letter of the required processing fee, Credit Interest (ior portions thereof) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to and specified in such Assignment and AcceptanceAcceptance (in addition to the Commitment(s), shall have the rights Loans and obligations Letter of a Lender under the Loan DocumentsCredit Interest, if any, theretofore held by such assignee) and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement the Commitment(s) (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, portion(s) thereof) so assigned. Upon each such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both assignment the assigning Lender and shall pay (or cause to be paid to) the Assignee shall be entitled to rely on the provisions Administrative Agent an assignment fee of Section 16.U.S. $3,000. Credit Agreement ----------------
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any A Lender may at any time sell or agree to sell to one or more commercial banks, financial institutionsother Persons a participation in all or any part of any Loans or Letter of Credit Interest held by it, or other Persons in its Commitments, in which event each purchaser of a participation (a "Participant") participating interests shall not, except as otherwise provided in all Section 4.07(c) hereof, have any rights or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and benefits under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, Note or consent or waiver with respect to this Agreement or of any other Loan Basic Document would (A) extend the final maturity date 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 Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all . All amounts payable by a Borrower hereunder to any Lender under Section 5 hereof in respect of Loans, Letter of Credit Interest held by it, and under the other Loan Documents its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participations in such Loans, Letter of Credit Interest and Commitments, and as if such Lender were funding each of such Loan, Letter of Credit Interest and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interest and Commitments 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 Basic Document except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaidi) extend the term, or shall have been declared extend the time or shall have become due and waive any requirement for the reduction or termination, of such Lender's related Commitment, (ii) extend any date fixed for the payment of principal of or interest on the related Loan or Loans, Reimbursement Obligations or any portion of any fee hereunder 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 Participant, (iii) reduce the amount of its participating any such payment of principal, (iv) reduce the rate at which interest were owing directly is payable thereon, or any fee hereunder payable to it as the Participant, to a Lender under this Agreement. The rights level below the rate at which the Participant is entitled to receive such interest or fee or (v) consent to any modification, supplement or waiver hereof or 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 of the other Loan Basic Documents or any direct rights as to the other Lendersextent that the same, Agentunder Section 11.09 or 12.04 hereof, Borrower, requires the Collections consent 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 themselveseach Lender.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at (without notice to the Borrowers, the Administrative Agent or any time create a other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security interest in, or pledge, pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank and its Loans and its Notes to an affiliate. No such assignment shall release the assigning Lender from its obligations hereunder (except that such assignment shall release the assigning Lender to the extent the same is effected in accordance with Regulation A the provisions of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawparagraph (b) above).
(he) Each A Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest may furnish any information concerning any Group Member in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and possession of such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time to assignees and participants (the "Register”including prospective assignees and participants). The entries in the Register shall be conclusive, and Borrowersubject, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant however, to the terms hereof as a Lender hereunder for all purposes provisions of Section 12.16(b) hereof.
(f) Anything in this Agreement, notwithstanding notice Section 12.06 to the contrary. The Register shall be available for inspection contrary notwithstanding, no Lender may assign or participate any interest in any Loan or Reimbursement Obligation held by Borrower and it Credit Agreement ---------------- hereunder to any Lenders, at Group Member or any reasonable time and from time to time upon reasonable of their Affiliates or Subsidiaries without the prior noticewritten consent of each Lender.
Appears in 1 contract
Sources: Credit Agreement (Fabrene Group Inc)
Assignments and Participations. (a) With the prior written consent of BorrowerAny Bank may, which consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the prior written consent of Agentthe Agent and Company, which consent of Agent shall not unreasonably be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligationsits interests, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount this Agreement (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other including all or a Related Fund portion of such new Lender its Warehouse Line Commitment, Loans, or its Warehouse Note) to one or more banks or other financial institutions having experience as a co-bank in credit facilities similar to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000Agreement (each an "Assignee"); , provided, however, that (ia) no such consent by the Agent and Company shall be required in the case of any assignment may be made to a natural person, another Bank or any Affiliate of such Bank or another Bank; (iib) no such consent by Agent and Company shall be required in the case of an assignment may be made to a Loan Party, Affiliate while an Event of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor Default exists and is continuing; and (iiic) no any partial assignment shall be in an amount at least equal to $5,000,000.00 and integral multiples of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower $500,000.00 in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addressesexcess thereof, and related information with respect (c) each such assignment shall be effected by means of an assignment agreement reasonably acceptable 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), (iii) unless waived by Agent, the assigning Lender or Bank and the Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, (an "Assignment and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(b) Acceptance Agreement"). From and after the effective date that Agent notifies specified in the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance andAgreement approved by the Agent, 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 the assigning Bank hereunder, the assigning Bank shall be relieved from its obligations hereunder to a Lender corresponding extent, this Credit Agreement shall be amended to reflect such assignment, and the Agent and the Company shall make appropriate arrangements so that a new Note is issued to the Assignee and such assigning Bank, as appropriate. In connection with any such assignment, the assigning Bank shall pay to the Agent an administration fee for processing such assignment in the amount of $2,500.00. Each Bank may, at no additional cost to the Company, grant participations in all or any part of the outstanding principal balance of its Warehouse Note and its Warehouse Line Commitment to one or more Persons provided that (i) any such disposition shall not, without the consent of the Company, require the Company to file a registration statement with the Securities and Exchange Commission or apply to qualify the Warehouse Advances or the Warehouse Notes under the Loan Documents, and blue sky law of any state; (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 holder of any such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender participation shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall not be entitled to rely on the provisions of Section 16.
require such Bank to take or omit to take any action hereunder; and (ciii) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm any Person to and agree with each other and the other parties hereto as follows: (i) other than as provided in whom such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations disposition has been made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value shall not be considered a "Bank" for purposes of this Agreement or any other Loan Document furnished pursuant heretoCredit Agreement. No Bank shall, (ii) such assigning Lender makes no representation or warranty as between the Company and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party that Bank, be relieved of any of its obligations hereunder as a result of any granting of participations in all or any part of the outstanding principal balance of its Warehouse Note or its Warehouse Line Commitment of or other obligations owed to such Bank. Notwithstanding anything contained here and to the contrary, any Bank may at any time pledge or assign all or any portion of such Bank's rights 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 Credit Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawBank.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Warehousing Credit Agreement (United Financial Mortgage Corp)
Assignments and Participations. a. Subject to the conditions set forth in clause (aa)(ii) With below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
i. Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an a Specified Event of Default has occurred and is continuingcontinuing (other than any Designated Event of Default, to the extent subject to the Forbearance Period), or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received written notice thereof) and with the prior written consent of ; and
ii. Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
b. Assignments shall not be required in connection with an subject to the following additional conditions:
i. no assignment may be made to a Person that is natural person,
ii. no assignment may be made to a Lender Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion Loan Party,
iii. the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
iv. each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement,
v. the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iii) ,
vi. unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and (iv) any assignment of any portion of and
vii. the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the “Administrative Questionnaire”).
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of a portion of each Loan (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of each Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of each Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). The entries A Registered Loan (and the Registered Noteregistered 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Sources: Forbearance Agreement and Amendment (Salem Media Group, Inc. /De/)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an Event of Default has occurred and is continuing, or and (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (Lender; provided, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Competitor, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by AgentAgent and, so long as no Event of Default has occurred and is continuing, the Borrowers) of $5,000,000 3,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0003,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”) and any Tax forms or documentation required to be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advancesdelivered pursuant to Section 16.7.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The Borrowers agree that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.7 (it being understood that the documentation required under Section 16.7 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 13.1; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.13(c), Section 14.2 and Section 17.9 as if it were an assignee (without duplication of any such benefits that would otherwise be owed to the Lender with respect to the Loans subject to such participation) and (B) shall not be entitled to receive any greater payment under Section 16 with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired such participation. Each Lender that sells a participation agrees, at Borrowers’ request and expense, to use reasonable efforts to cooperate with Borrowers to effectuate the provisions of Section 2.13(c) (to the extent such section addresses designation of or assignment to a Replacement Lender), Section 14.2 and Section 17.9 with respect to any Participant. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest to secure obligations of such Lender, including any pledge 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 in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). A Registered Loan (and the registered note, if any, evidencing the same) may be assigned only by registration of such assignment on the Register (and each registered note shall expressly so provide) and any assignment of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment 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 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). The entries in the Register shall be conclusive, absent manifest error. Prior to the registration of assignment 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. The parties intend that the Register be maintained such that the Loans are in “registered form” for the purposes of the IRC.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of (such consent not be unreasonably withheld or delayed) of:
(A) Borrower; provided, which that no consent of Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender, thator a Related Fund; provided further, in each case, that Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedeach Swing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Person that is Competitor, or (ii) to a Lender natural person,
(B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees Loan Party,
(each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) each assignment shall be of an equal Pro Rata Share of the Revolver Commitment and the Floorplan Commitment,
(F) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, ,
(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iiiG) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivH) any assignment of any portion of the assignee, if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling AdvancesAgent (the "Administrative Questionnaire").
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments and Floorplan Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments or Floorplan Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments or Floorplan Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries 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 conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in effected only by the Participant Register as the owner registration of such participation for all purposes of this Agreement notwithstanding any notice to on the contraryParticipant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant to shall make a copy of its Participant Register in the terms hereof extent it has one) available for review by Borrower from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrower may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
Appears in 1 contract
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedor a Related Fund; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent within 5 five (5) Business Days after having received notice thereof; and
(B) and with the prior written consent of Agent, which consent of Agent shall not may be unreasonably withheld, delayed granted or conditionedwithheld in Agent's reasonable discretion, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions:
(A) no assignment may be made to a Person that is natural person or to a Lender Loan Party or an Affiliate (other than individuals) or Subsidiary of a Lender, any Lender may assign and delegate to one or more assignees Loan Party;
(each, an "Assignee"B) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x1) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (y2) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000);
(C) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇’s rights and obligations under this Agreement; 125
(D) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (i1) 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, (ii2) such Lender and its the Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii3) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's ’s separate account account, a processing fee in the amount of $3,5005,000; and
(E) the assignee, and (iv) any assignment of any portion of if it is not a Lender's Revolver Commitment , shall be accompanied deliver to Agent an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.Agent (the “Administrative Questionnaire”). 126
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.310.03) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 Article XV and Section 17.9(a17.08(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently 127 and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b13.01(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided in the subsection, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)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 128 this Agreement to the same extent as if the amount of its participating interest were owing directly 129 to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its SubsidiariesBorrowers, the Collateral, or otherwise in respect of the Obligations. No The Borrowers agree that each Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject be entitled to the provisions benefits of Section 17.9Sections 2.06(j), disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”2.12(a). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.,
Appears in 1 contract
Sources: Credit Agreement (Shimmick Corp)
Assignments and Participations. (a) With This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns; PROVIDED, HOWEVER, that the Borrower may not assign or transfer any of its rights hereunder without the prior written consent of Borrower, which consent all Lenders and the Agents and any such assignment without all of Borrower shall not be unreasonably withheld, delayed or conditioned, the Lenders' and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender (provided, that, in each case, Borrower shall be deemed to have consented to a proposed assignment unless Borrower objects thereto by written notice to Agent within 5 Business Days after having received notice thereof) and with the Agents' prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, null and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any void. Each Lender may sell, assign and delegate to one or more assignees (each, an "Assignee") all or any portion of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000); provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee, (ii) such Lender and participate 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), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.
(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 the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and without the other Loan Documents, such consent of the Borrower to a successor Lender shall cease to be that is a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning current Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and or an Affiliate thereof, together with or an account managed by such powers as are reasonably incidental thereto, Lender or Affiliate (a "MANAGED Account"). GCF for itself and (vi) such Assignee its Affiliates hereby agrees that it will perform all shall not sell, assign or participate its rights or obligations hereunder if, as a result of such sale, assignment or transfer and after giving effect thereto, GCF and its Affiliates would own in the aggregate less than 50.1% 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 aggregate principal amount of the required processing fee, if applicable, and delivery of notice to Total Facility Exposure on 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 date thereof. Prior written consent of the Assignee Administrative Agent and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated Borrower is required for any Lender to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one sell, assign or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of participate its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the (which consent shall not be unreasonably withheld) to any Person other Loan Documents, (iv) no Lender shall transfer than an Affiliate or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or a Managed Account 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 to a then current Lender or an Affiliate thereof. Each assignment, other than an assignment to a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a current Lender under this Agreement, or an Affiliate or a Managed Account thereof, shall (unless the Administrative Agent otherwise consents in writing) be in an amount not less than the lesser of (i) $1,000,000 or (ii) the remaining amount of the assigning Lender's commitment (calculated as at the date of such assignment). The rights An assignment fee of any Participant only shall $3,500 will be derivative through payable by the Originating assigning 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 ObligationsAdministrative Agent for each assignment. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Each Lender may at any time create a security interest in, or pledge, all or any portion of its rights under disclose information to prospective participants and interest in this Agreement in favor of any Federal Reserve Bank assignees in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable lawSECTION 14.20.
(h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Swing Loans or other obligations under this Agreement (the "Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(i) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, shall maintain, or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Overhill Farms Inc)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of Borrower, which (each such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of:
(A) Administrative Borrower; provided, delayed or conditioned, and that no consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing, continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless Borrower it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within 5 five (5) Business Days after having received notice thereof; and
(B) and with Agent and, solely in the prior written case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individualsnatural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender may assign and delegate to one or more assignees (each, an "Assignee") all or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the Obligations, foregoing Persons,
(C) the Revolver amount of the Commitments and/or Loans and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers and Agent (and Revolving Agent if applicable) 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), (iiiF) unless waived by Agent, the assigning Lender or Assignee has paid to Agent Agent, for Agent's separate account account, a processing fee in the amount of $3,500, and and
(ivG) any assignment of any portion of the assignee, if it is not a Lender's , shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitment shall be accompanied Commitments) an Administrative Questionnaire in a form approved by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances Agent (the "Administrative Questionnaire") and of such Lender's Sterling Advancesall information and other documents required under the Patriot Act.
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiumspremiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vvii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrower Borrowers hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16)participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, BorrowerRevolving Agent, the Collections of Borrower or its SubsidiariesBorrowers, 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 Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participationAgent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), acting solely for this purpose in each case as a non-fiduciary agent on behalf of BorrowerBorrowers, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lender. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a 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 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 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 any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Loans or other obligations under this Agreement that is subject to such participations) (the "Participant Register”"). The entries A 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 conclusive absent manifest error, and effected only by the registration of such participation on the Participant Register. No Lender shall treat each Person whose name is recorded in have any obligation to disclose all or any portion of the Participant Register as (including the owner identity of such participation for all purposes any Participant or any information relating to a Participant's interest in any commitments, loans, letters of this Agreement notwithstanding credit or its other obligations under any notice Loan Document) to any Person except to the contrary.
(i) The Agentextent that such disclosure is necessary to establish that such commitment, acting for this purpose as a non-fiduciary agent loan, letter of Borrower, shall maintain, credit or cause to be maintained, a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount (and stated interest) of the Swing Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register”). The entries other obligation is in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior notice.registered form un
Appears in 1 contract
Sources: Credit Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (ai) With 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 owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent of Borrower, which (such consent of Borrower shall not be unreasonably withheldwithheld or delayed) of: (A) Borrowers; provided, delayed or conditioned, and that no consent of Borrowers shall not be required (1) if an 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 individualsnatural persons) of a Lender (providedLender; provided further, that, in each case, Borrower that Borrowers shall be deemed to have consented to a proposed assignment unless Borrower objects they object thereto by written notice to Agent within 5 five Business Days after having received notice thereof; and (B) and with the prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditionedSwing Lender, and Issuing Bank.
(ii) Assignments shall not be required in connection with an subject to the following additional conditions: (A) no assignment may be made (I) so long as no Event of Default has occurred and is continuing, to a Person that is Disqualified Institution, or (II) to a Lender natural person, (B) no assignment may be made to a Loan Party or an Affiliate (other than individuals) of a LenderLoan Party, any Lender may assign and delegate to one or more assignees (each, an "Assignee"C) all or any portion the amount of the Obligations, the Revolver Commitments and the other rights and obligations of such the assigning Lender hereunder and under the other Loan Documents, Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or Lender, an Affiliate of any Lender Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, (E) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, however, that (i) no assignment may be made to a natural person, (ii) no assignment may be made to a Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor and (iii) no assignment of Advances or Revolver Commitments may be made to a Person that cannot (directly or through an Applicable Designee) lend to Borrower in Dollars, Canadian Dollars, Euros and Sterling; provided, further, that Borrower Borrowers and Agent may continue to deal solely and directly with such the assigning 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 Borrowers 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), (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500, and (iv) any assignment of any portion of a Lender's Revolver Commitment shall be accompanied by proportionate assignment of such Lender's US Advances, of such Lender's Canadian Dollar Advances, of such Lender's Euro Advances and of such Lender's Sterling Advances.,
(b) From and after the date that Agent notifies receives the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a); and provided, for greater certainty that both the assigning Lender and the Assignee shall be entitled to rely on the provisions of Section 16.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder and under the other Loan Documents shall be determined as if such Lender had not sold such participation (except where applicable for purposes of Section 16), except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, or in favor of the Bank of Canada, and such Federal Reserve Bank and the Bank of Canada may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Each Lender that sells a participation, acting solely for this purpose Agent (as a non-fiduciary agent on behalf of BorrowerBorrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such ▇▇▇▇▇▇ (each, a “Registered Loan”). Other than in connection
(i) In the event that a Lender sells participations in the Registered Loan, such ▇▇▇▇▇▇, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name and address of each Participant all participants in the Registered Loans held by it (and the principal amounts amount (and stated interestinterest thereon) of each participant’s interest in the Swing portion of such Registered Loans or other obligations under this Agreement that is subject to such participations) (the "“Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(ij) The Agent, acting for this purpose as a non-fiduciary agent of Borrower, Agent shall maintain, or cause to be maintained, make a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitment of, and principal amount Register (and stated interest) of the Swing Loans owing to, each Lender pursuant shall make a copy of its Participant Register to the terms hereof extent it has one) available for review by Borrowers from time to time (the "Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders as Borrowers may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lenders, at any reasonable time and from time to time upon reasonable prior noticereasonably request.
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Sources: Credit Agreement (Nautilus, Inc.)