Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans. (b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto. (c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any). (d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. (e) Notwithstanding any other provision in this Agreement, 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; 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. (f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
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Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderBorrower, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (except Borrower's consent shall not be required if (i) a Default or an Event of Default exists and is continuing, and (ii) the Eligible Assignee is not engaged in the securities brokerage business or the investment advisory business), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Commitments, and the other interests, rights and obligations hereunder of such assigning LenderLender hereunder, in a minimum amount of $10,000,000; and provided furtherprovided, however, that Holdings and the Administrative Borrower and, the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that the Administrative Agent it has received (and, if required, and the Borrower and the Agent have provided its their consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
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Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Guarantor and the Documentation Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Guarantor or the Administrative Agent, the L/C Issuer or the Swingline Lender Documentation Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is another Lender or an a Bank Affiliate of such assigning Lender Bank or within the same “family to any other Bank) (each, an "Assignee") all, or any part of funds” as such assigning Lenderits Credit Exposure, provided that if (i) it assigns its Credit Exposure in an amount not less than Ten Million Dollars ($10,000,000), and (ii) such Assignee pays to the proposed Documentation Agent an assignment fee of $3,000. Each Borrower and the Banks agree that to the extent of any assignment to an Assignee is another Lenderin accordance with the foregoing sentence, the Lender seeking Assignee shall be deemed to assign its interests hereunder shall consult with Holdings and have the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s same rights and obligations benefits with respect to its Commitmenteach Borrower under this Agreement and any Notes and the same rights of set-off and obligation to share pursuant to Section 9.11 as it would have had if it were a Bank hereunder, Loans provided that each Borrower and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder the Documentation Agent shall be equal entitled to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender the assignor Bank in connection with the interest interests so assigned to an the Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings each Borrower and the Administrative Documentation Agent by such Lender the assignor Bank and the Assignee; Assignee (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee accompanied, in the amount case of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Documentation Agent, Holdings, by payment of the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(afee). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after Upon the date that the Administrative Agent notifies assignment of Credit Exposure provided for hereby, the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder Bank shall be a party hereto and, relieved of its obligations hereunder to the extent of such assignment and the Assignee shall become a Bank hereunder. In the event that rights the holder of any Note (including any Bank) shall assign or transfer such Note as permitted hereby, or any part of the obligations evidenced thereby, the applicable Borrower shall, upon surrender of such Note, issue new Notes to reflect such transfer or assignment payable to the order of the relevant parties as their respective interests may appear; provided that such Borrower and obligations hereunder the Documentation Agent shall be entitled to continue to deal solely and directly with the assignor holder of such Note in connection with the interests so assigned until written notice of such assignment shall have been assigned to it pursuant given to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee Borrower and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) Documentation Agent by the assignor Lender shall, to and the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to assignee of such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV Note or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantointerest therein.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender Each Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings entities (a “Participant”"Participants") participating interests in all or any Loansportion of its Commitment and Loans made pursuant to this Agreement or any other interest of such Bank hereunder or under any Note (in respect of any Bank, its "Credit Exposure"), provided that, notwithstanding the Commitment foregoing, any Bank may at any time sell participating interests in all or a part of that Lender and its Credit Exposure to any Affiliate of such Bank or to any other Bank. In the other event of any such sale by a Bank of participating interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; providedto a Participant, however, that (i) the originating Lender’s such Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender such Bank shall remain solely responsible for the performance of thereof, such obligations, (iii) Holdings, Bank shall remain the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case holder of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee Notes for such Lender as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.all
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Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitmentother rights and obligations of such Lender hereunder, in a minimum amount of the L/C Obligations lesser of (i) $5,000,000 or (ii) the full amount of the Loans, and the other rights and obligations of such Lender hereunderLender; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance"), requiring, among other things, that any Assignee agree to be bound by the Intercreditor Agreement and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Term Loan Agreement (Apw LTD)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent consents of the Administrative Borrower and the Agent, which consents shall be at the L/C Issuer sole discretion of the Borrower and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld)Agent, at any time assign and delegate to one or more Eligible Assignees (provided that (i) no written consent of the Borrower shall be required during the existence of an Event of Default after the Agent has declared the Commitment of each Bank to make Loans to be terminated and (ii) no written consent of the Borrower or the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Combined Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit J ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(a10.8(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)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 Combined Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “originating Lender”"Originator") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Originator's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originator shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Originator in connection with the originating Lender’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01Originator's 77
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender Bank hereunder, and 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 Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign a security interest in all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it for the purpose of such Lender, including creating a security interest in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), with except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the L/C Issuer Lenders and Issuing Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Swingline Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, or, if an Event of Default has occurred and is continuing, any other assignee,
(B) the Administrative Agent; and
(C) each Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment or Committed Loans, the amount of the Commitment or Committed Loans of the assigning Lender or within subject to each such assignment (determined as of the same “family date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into otherwise consent; provided, that no such assignment; (iii) except in connection with an assignment consent of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder the Borrower shall be equal to or greater than $1,000,000; required if an Event of Default has occurred and is continuing;
(ivB) each such partial assignment shall be made as an assignment of a ratable proportionate part of all the Loans, the Commitment and the other interests, assigning Lender's rights and obligations hereunder under this Agreement, except that this clause (B) shall not apply to rights in respect of such assigning Lender; and provided further, however, that Holdings outstanding Bid Loans,
(C) the Assignee and the Administrative Agent may continue Assignor in respect of each assignment shall execute and deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and
(BD) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptanceif it shall not be a Lender, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid deliver to the Administrative Agent a processing fee an Administrative Questionnaire. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all of the assigning Lender's rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under Article IV or under Section 11.04 cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.05, 3.08, 3.09, 3.10, 3.11 and Section 11.05 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights relate to the time prior to the effective date or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of the Assignment this Agreement as a sale by such Lender of a participation in such rights and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations obligations in accordance with paragraph (e) of the assigning Lender pro tantothis Section.
(c) Within five (5) Business Days after Holding’s receipt The Administrative Agent, acting for this purpose as an agent of notice by the Administrative Agent that it has received (andBorrower, if necessary, consented to) an executed shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and payment a register for the recordation of the processing fee names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and provided that the L/C IssuerBorrower, the Swingline Administrative Agent, the Issuing Banks 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 Lender and Holdings each consent any Issuing Bank, at any reasonable time and from time to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee's completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. 121
(e) Any Lender may at may, without the consent of the Borrower, any time Issuing Bank or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates entities (each a "Participant") in all or a portion of Holdings such Lender's rights and obligations under this Agreement (including all or a “Participant”) participating interests in any Loans, the portion of its Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) Holdingsthe Borrower, the L/C IssuerAdministrative Agent, the Swingline Lender Issuing Banks and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 11.0110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.013.05 (other than 3.05(f)), 4.03 3.06, 3.08, 3.09 and 11.05 as though it were also a Lender hereunder, and 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 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation in the minimum amount of its participating interest $10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative 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 Borrower and the Administrative Agent to become a Voting Participant, 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 owing directly to it as a Lender, on any matter requiring or allowing a Lender under 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 10.08 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this Agreementparagraph.
(ef) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 3.05, any 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender.
(g) 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 LenderLender to (i) a Federal Reserve Bank or (ii) the Farm Credit Funding Corp. or to any other entity organized under the Farm Credit Act, including as amended, and this Section shall not apply to any such pledge or assignment to secure obligations to of a Federal Reserve Banksecurity interest; provided that no such pledge or assignment of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee Assignee for such Lender as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Borrower (which in each case consent shall not be unreasonably withheld)required during the existence of an Event of Default) and the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Borrower or the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of U.S.$5,000,000 (or, if less, the amount of such Lender’s Commitment); provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentBorrower, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit D (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment and (iii) such Lender or the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansU.S.$3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received and provided its consent (and, if to the extent required, provided its received the consent of the Borrower) with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt the effectiveness of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed any Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent pursuant to such assignment in accordance with Section 11.08(asubsection 10.8(a)), Holdings shall the Borrower shall, upon request, execute and deliver to the Administrative Agent any a new Note requested by such Assignee evidencing such the applicable Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, a replacement Notes as requested by Note in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note held by such the assignor Lender). Immediately upon the effectiveness of any Assignment and Acceptance, if any)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/or the resulting adjustment of the Commitments arising therefrom.
(d) Any Lender may at any time time, with notice to the Borrower, sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that such Lender and the other interests of that such Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the a Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3, 3.4 and 11.05 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall be entitled to any greater amount pursuant to such Sections than the originating Lender would have been entitled to receive if no such participation had been sold), and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no , and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under Applicable Law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Bridge Credit Agreement (Lance Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderBorrower, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (except Borrower’s consent shall not be required if (i) a Default or an Event of Default exists and is continuing, and (ii) the Eligible Assignee is not engaged in the securities brokerage business or the investment advisory business), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum amount of $10,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentBorrower and, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment; and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that the Administrative Agent it has received (and, if required, and the Borrower and the Agent have provided its their consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(asubsection 10.8(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.such
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderIssuing Bank, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Agent or the Administrative Agent, the L/C Issuer or the Swingline Lender Issuing Bank shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "ASSIGNEE") all, or within any ratable part of all, of the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another LenderLoans, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans Commitments and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $5,000,000 (or, if less, the entire amount of such Lender's Loans, Commitment and L/C Obligations); and provided furtherPROVIDED, howeverHOWEVER, that Holdings the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(a)), Holdings the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO.
(d) Any Lender may at any time sell to one or more commercial banks lenders or other Persons not Affiliates of Holdings the Company (a “Participant”"PARTICIPANT") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) 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) Holdingsthe Company, the L/C Issuer, the Swingline Lender Issuing Bank and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso FIRST PROVISO to Section 11.01SECTION 11.
01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding No assignee, participant or other transferee of any provision in this Section 11.08 Lender's rights shall be entitled to receive any greater payment under Article IV than such Lender would have been entitled to receive with respect to the contrary, no registration rights transferred or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargoreason of the provisions of Article IV requiring such Lender to designate a different Applicable Lending Office under certain circumstances or at a time when the circumstances giving rise to such greater payment did not exist.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company at all times other than during the existence of an Event of Default and the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (provided, that no written consent of the Company or the Administrative Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of Five Million Dollars ($5,000,000); provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the such Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the such Assignee; (B) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Assumption in the form of Exhibit H (“Assignment and Acceptance”) together with any Revolving Note or Revolving Notes subject to such assignment and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of Three Thousand Five Hundred Dollars ($3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a3,500). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided provided, that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(apursuant to subsection 10.8(a)), Holdings the Company shall execute and deliver to the Administrative Agent any new Note requested by such Assignee Revolving Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Revolving Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Revolving Notes to be in exchange for, but not in payment of, the Note Revolving Notes held by such Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, if any)this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender pro tanto.
(d) Any Lender may may, upon prior written notice to the Company and the Administrative Agent, at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5, with respect to its participation interest, as though it were also a Lender hereunder and subject to the same qualifications and limitations as if it were a Lender hereunder, and provided there is no duplicate recovery, but shall not have any other rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company or any Subsidiary of the Company, or by the Administrative Agent on such Company’s or Subsidiary’s behalf, in connection with this Agreement or any other provision Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided, that such source is not bound by a confidentiality agreement with the Company known to such Lender; provided, further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may at be party, (E) to the extent reasonably required in connection with the exercise of any time pledge remedy hereunder or assign under any other Loan Document, and (F) to such Lender’s independent auditors and other professional advisors, provided that each such Person has agreed to preserve the confidentiality of such material. Notwithstanding the foregoing, the Company authorizes each Lender to disclose to any Participant or Assignee (each, a security interest “Transferee”) and to any prospective Transferee, such financial and other information in all such Lender’s possession concerning the Company or its Subsidiaries which has been delivered to any Agent or any portion Lender pursuant to this Agreement or which has been delivered to any Agent or any Lender by the Company in connection with the Lenders’ credit evaluation of the Company prior to entering into this Agreement; provided, that, unless otherwise agreed by the Company, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. In the event that any Agent or Lender or any recipient of nonpublic information obtained pursuant to clause (E) above is required or requested to disclose any confidential information pursuant to clauses (A)-(D) above, such recipient shall give the Company prompt prior written notice of such requirement or request so that the Company may seek an appropriate protective order, and, at the expense of the Company, such recipient shall cooperate with the Company in any proceedings to obtain such a protective order to the extent such cooperation is necessary to obtain such protective order and to the extent the recipient determines its cooperation will not be disadvantageous to it. In the absence of a protective order, if the recipient is nonetheless compelled or required to disclose such confidential information in the opinion of its rights under this Agreement to secure obligations of legal counsel, it may disclose such Lenderconfidential information, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no the recipient shall give the Company written notice of the confidential information to be disclosed as far in advance of the disclosure as is practicable and, upon the request and at the expense of the Company, shall use its reasonable effects to obtain assurances that confidential treatment shall be accorded 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 heretoinformation by the receiving party.
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Loan Document to the contrary, no registration any Lender may assign all or processing fee any portion of the Loans or Revolving Notes held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank, provided, that any payment in respect of such assigned Loans or Revolving Notes made by the Company to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Company’s obligations hereunder in respect to such assigned Loans or Revolving Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) BOA may assign its obligations as an Issuer to an Affiliate of BOA without the prior written consent of any party hereto. In connection with such assignment, each of the parties hereto agrees to execute such documents as are reasonably requested by such Affiliate of BOA to effectuate such assignment.
(h) Notwithstanding anything to the contrary contained herein, if at any time BOA assigns all of its Commitment and Loans pursuant to subsection 10.8(a) above, BOA may, (i) upon 30 days’ notice to the Company and the Lenders, resign in its capacity as the Issuer hereunder and/or (ii) upon 30 days’ notice to the Company, resign in its capacity as the provider of Swing Line Loans (the “Swing Line Lender”). In the event of any such resignation as the Issuer or the Swing Line Lender, the Company shall be payable entitled to appoint from among the Lenders a successor Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of BOA as the Issuer or the Swing Line Lender, as the case may be. If BOA resigns as the Issuer, it shall retain all the rights and obligations of the Administrative Agent as the Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuer (including the right to require the Lenders to make Revolving Loans or fund participations therein pursuant to subsection 2.15(a)). If BOA resigns as the Swing Line Lender, it shall retain all the rights of the Administrative Agent as the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Revolving Loans or fund participations in connection outstanding Swing Line Loans pursuant to subsection 2.16(c). The Company, the Lenders and BOA agree that they shall amend this Agreement as necessary to reflect that BOA remains the Administrative Agent for purposes of administering this Agreement, but has resigned in its capacity as the Issuer and/or the Swing Line Lender and another Lender(s) shall provides such service, including the obligation of the successor to BOA as the Issuer to issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or to make other arrangements satisfactory to BOA to effectively assume the obligations of BOA with any assignment by W▇▇▇▇ Fargorespect to such Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (LKQ Corp)
Assignments, Participations, etc. (a) Any Lender may, with the may upon written consent of the Administrative Agent, the L/C Issuer Issuing Lender and the Swingline LenderBorrower, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (provided at any time that an Event of Default has occurred and is continuing, no approval from the Company shall be required), at any time time, assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent or the Issuing Lender shall be required in connection with any assignment and delegation by the Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of allall in a minimum commitment amount at least equal to $5,000,000 or in $1,000,000 increments in excess thereof, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit D (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,000.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section Subsection 11.08(a)), Holdings ) the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender, if anywhich shall be cancelled upon receipt of the new or replacement Notes). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings the Company (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, the originating Lender shall remain a Lender for all purposes hereof and the other Loan Documents to which such originating Lender is a party, and the Participant may not become a Lender for purposes hereof or for any other of the Loan Documents, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01Lenders. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant’s rights against the granting Lender in respect of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Lender), and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the Company and provided to it by the Company or any of its Subsidiaries, or by the Administrative Agent on such Company’s or Subsidiary’s behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by any Lender or the Administrative Agent, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Lender; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender’s independent auditors and other professional advisors; (G) to any Affiliate of such Lender, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Lenders hereunder, and (H) as to any Lender, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Lender.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Notes held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Lender may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Each Lender maymay assign to one or more assignees (each, an "Assignee") all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Agent (which in each case shall not to be unreasonably withheldwithheld or delayed), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent the amount of Holdings the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance substantially in the form of Exhibit J (the "Assignment and Acceptance") with respect to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments to Related Funds (as defined below)) shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or not, unless consented to by the Administrative Agent, be less than $1,000,000 (or, if less, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate entire remaining amount of such assigning Lender Lender's Commitment or within Loans), (ii) the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking parties to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any each such assignment shall execute and deliver to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject via an electronic settlement system acceptable to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender (or, if previously agreed with the Administrative Agent, manually) and the Assignee; (C) the assignor Lender or Assignee shall have paid pay to the Administrative Agent a processing and recordation fee in the amount of $3,500 3,500.00 (it being understood which fee may be waived or reduced in the sole discretion of the Administrative Agent), provided, that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is shall be payable for in the series case of simultaneous concurrent assignments to Persons that, after giving effect to such assignments, will be Related Funds and (iii) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in such form as supplied from time to time by the Administrative Agent (an "Administrative Questionnaire") and all applicable tax forms. Upon acceptance and recording pursuant to Section (D) the Administrative Agentc), Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From from and after the effective date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed specified in each Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (iA) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iiiB) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under cease to be a party hereto but shall continue to be entitled to the benefits of Article IV or under Section 11.04 III and Section 11.05 11.5, as well as to the extent such rights relate to the time any fees accrued for its account prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed specified in such Assignment and Acceptance and payment of the processing fee (not yet paid). The term "Related Funds" shall mean with respect to any Lender that is a fund or combined investment vehicle that invests in bank loans, any other fund that invests in bank loans and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested is managed or advised by the assignor same investment advisor as such Lender evidencing the Loans and Commitment retained or by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance an Affiliate of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 Agreementinvestment advisor.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Term Loan Agreement (Venoco, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderBorrower, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (except Borrower’s consent shall not be required if a Default or an Event of Default exists and is continuing), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum amount of $10,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentBorrower and, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment; and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that the Administrative Agent it has received (and, if required, and the Borrower and the Agent have provided its their consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(asubsection 10.8(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.such
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), with except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the L/C Issuer Lenders and Issuing Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Swingline Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, a Lender Affiliate or, if an Event of Default has occurred and is continuing, any other assignee,
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment to a Lender Affiliate; and
(C) each Issuing Bank (such consent not to be unreasonably withheld).
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or a Lender Affiliate or an assignment of Revolving the entire remaining amount of the assigning Lender’s Commitment or Committed Loans, Holdings the amount of the Commitment or Committed Loans of the assigning Lender subject to each such assignment (which in each case determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (less than $5,000,000 unless each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into otherwise consent; provided, that no such assignment; consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(iiiB) except in connection with each partial assignment shall be made as an assignment of a proportionate part of all of a the assigning Lender’s rights and obligations with under this Agreement, except that this clause (B) shall not apply to rights in respect to its Commitment, Loans of outstanding Bid Loans,
(C) the Assignee and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) the Assignor in respect of each such partial assignment shall be of a ratable part of the Loans, the Commitment execute and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and
(BD) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptanceif it shall not be a Lender, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid deliver to the Administrative Agent a processing fee an Administrative Questionnaire. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under Article IV or under Section 11.04 cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.05, 3.08, 3.09, 3.10, 3.11 and Section 11.05 10.05) (but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights relate to the time prior to the effective date or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of the Assignment this Agreement as a sale by such Lender of a participation in such rights and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations obligations in accordance with paragraph (e) of the assigning Lender pro tantothis Section.
(c) Within five (5) Business Days after Holding’s receipt The Administrative Agent, acting for this purpose as an agent of notice by the Administrative Agent that it has received (andBorrower, if necessary, consented to) an executed shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and payment a register for the recordation of the processing fee names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and provided that the L/C IssuerBorrower, the Swingline Administrative Agent, the Issuing Banks 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 Lender and Holdings each consent any Issuing Bank, at any reasonable time and from time to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at may, without the consent of the Borrower, any time Issuing Bank or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Holdings entities (each a “Participant”) participating interests in any Loans, the all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) 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, obligations and (iii) Holdingsthe Borrower, the L/C IssuerAdministrative Agent, the Swingline Lender Issuing Banks and the Administrative Agent 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. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 11.0110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.013.05, 4.03 3.06, 3.08, 3.09 and 11.05 as though it were also a Lender hereunder, and 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 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation in the minimum amount of its participating interest $10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative 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 Borrower and the Administrative Agent to become a Voting Participant, 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 owing directly to it as a Lender, on any matter requiring or allowing a Lender under 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 10.08 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this Agreementparagraph.
(ef) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 3.05, any 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender.
(g) 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 LenderLender to (i) a Federal Reserve Bank or (ii) the Farm Credit Funding Corp. or to any other entity organized under the Farm Credit Act, including as amended, and this Section shall not apply to any such pledge or assignment to secure obligations to of a Federal Reserve Banksecurity interest; provided that no such pledge or assignment of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee Assignee for such Lender as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Assignments, Participations, etc. (a) Any Lender --------------------------------- may, with the written consent of the Borrower (at all times other than during the existence of an Event of Default) and the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Borrower or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment -------- Commitments and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherLender hereunder, provided, however, that Holdings (x) the aggregate principal amount of the Commitment -------- ------- assigned by any Lender to someone other than another Lender shall be in a minimum amount of $5,000,000 (or if less, the entire Commitment then held by such Lender) and (y) after giving effect to any such assignment by a Lender, the aggregate amount of the Commitments and/or Loans held by such assigning Lender is at least $5,000,000 (unless such Lender has assigned the entire Commitment and Loans then held by it). The Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") ---------- ------------------------- and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish .
(c) Immediately upon each Assignee's making its rights processing fee payment under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).. --- -----
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") ----------- participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under ------------------ the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
1. In the ----- ------- ------------ case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 to the extent the Lender selling such ------------ --- ---- participation would be so entitled as though it were also a Lender hereunder, and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S).203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline Issuing Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum amount of $5,000,000 (or, if less, all of such Lender's remaining rights and obligations hereunder); provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentCompany, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Agent and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Issuing Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and the Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note subject to such assignment and (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent, and received the consent of the Issuing Lender, with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.assignor
Appears in 1 contract
Assignments, Participations, etc. (a) Any Each Lender may, with the written consent may assign any of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving its Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the its L/C Obligations and the other rights and obligations Obligations hereunder (but only with the consent of such Lender hereunderthe Administrative Agent, and in the case of an L/C Obligation, the applicable Letter of Credit Issuer, with respect to Swing Line Loans, the Swing Line Lender, and with respect to Daylight Overdraft Loans, the Daylight Overdraft Bank to one or more commercial banks or other Persons not Affiliates of the Borrower (each, an “Assignee”) which is an Eligible Assignee; provided, however, that that
(i) no written consent of Holdings shall be required during except to the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and extent the Administrative Agent before entering into (and the applicable Letter of Credit Issuer, in the case of a Letter of Credit) shall otherwise consent, any such assignment shall be (A) if a partial assignment; , in an amount at least equal to $5,000,000 or (iiiB) except in connection with if an assignment of all of a Lender’s 's Obligations, a lesser amount;
(ii) each such assignment by a Lender of its Loans, or L/C Obligations shall be made in such manner so that the same portion of its Loans, and L/C Obligations is assigned to the respective Assignee; and
(iii) upon each such assignment, the assigning Lender and Assignee shall deliver to the Borrower, the Administrative Agent and the Letter of Credit Issuers a Notice of Assignment in the form of Exhibit K hereto, and the assigning Lender shall pay a $3,500 recordation fee to the Administrative Agent. Upon execution and delivery by the assigning Lender and the Assignee to the Borrower, the Administrative Agent and the Letter of Credit Issuers of such Notice of Assignment, and upon consent thereto by the Administrative Agent and the applicable Letter of Credit Issuer to the extent required above, the Assignee shall have, to the extent of such assignment (unless otherwise consented to by the Administrative Agent), the obligations, rights and obligations with respect benefits of a Lender hereunder holding the Loans and, if applicable, L/C Obligations (or portions thereof) assigned to its Commitment, it and specified in such Notice of Assignment (in addition to the Loans and L/C Obligations, any if any, theretofore held by such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (ivassignee) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interestsassigning Lender shall, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and to the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice extent of such assignment, together with payment instructions, addresses and related information with respect to be released from the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iiior portion(s) thereof) so assigned.
(b) A Lender may (but only with the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date consent of the Assignment and Acceptance. The CommitmentAdministrative Agent and, Loans and in the case of an L/C Obligations allocated to each Assignee shall reduce Obligation, the Commitment, Loans and L/C Obligations applicable Letter of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Credit Issuer, the Swingline Lender and Holdings each such consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note not to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(dunreasonably withheld or delayed) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender L/C Obligations and the any other interests of that such Lender (the “originating Lender”) hereunder and under the other Loan Documents; Documents provided, however, that (i) the originating such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent Borrower shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no such Lender shall not transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent relates to the principal amount of any Loans, the Face Amount of any Letters of Credit, the rate of interest to be charged with respect to any Loans or L/C Obligations, any fees payable to a Lender under this Agreement or the extension of the Lenders as described in the first proviso to Section 11.01Expiration Date. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and except that, if all amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon by the occurrence of an Event of Default, each Participant Borrower hereunder 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 determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementhad not sold such participation.
(ec) Notwithstanding any other provision in this Agreement, any Lender may without the consent of the Administrative Agent, any Letter of Credit Issuer, or the Borrower, at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Uncommitted Revolving Credit Agreement (Tesoro Corp /New/)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company at all times other than during the existence of an Event of Default and with the written consents of the Administrative AgentAgent and, the in case of an assignment of a Revolving Commitment or L/C Issuer Obligations, the Issuing Lender and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or Company, the Administrative Agent, the L/C Issuer Issuing Lender or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to a Person described in clause (ii), (iii), (iv) or (v) of the definition of Eligible Assignee) (each, an Eligible Assignee that is another Lender "Assignee") all, or an Affiliate any part, of the Loans, the Revolving Commitment, the L/C Obligations and the other rights and obligations of such assigning Lender or within the same “family hereunder, in a minimum amount of funds” as such assigning Lender$5,000,000 (or, provided that if the proposed Assignee is another Lenderless, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a such Lender’s 's remaining rights and obligations hereunder or all of such Lender's rights and obligations with respect to its CommitmentRevolving Commitment and Revolving Loans, Term A Loans or Term B Loans) or such lesser amount as may be approved by the Company and L/C Obligations, any the Administrative Agent (provided that such assignment minimum amount shall not apply to an Eligible Assignee that is not assignments by a Lender hereunder shall be equal to or greater than $1,000,000; and Persons described in clause (ii), (iii), (iv) each such partial assignment shall be of a ratable part or (v) of the Loans, the Commitment and the other interests, rights and obligations hereunder definition of such assigning LenderEligible Assignee); and provided furtherprovided, however, that Holdings (A) the Company, the Administrative Agent, the Issuing Lender and the Administrative Agent Swingline Lender may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, Assignee shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; , (Cii) such Lender and the Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit K (an "Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (DB) the Company shall not, as a result of any assignment, delegation or participation by any Lender, incur any increased liability for Taxes, Other Taxes or Further Taxes pursuant to Section 4.1. The Company designates the Administrative AgentAgent as its agent for maintaining a book entry record of ownership identifying the Lenders, Holdings, the L/C Issuer their respective addresses and the Swingline Lender each shall have provided any required consent amount of the respective Loans and Notes which they own. The foregoing provisions are intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansregulation.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent consent, and received the consents of the Swingline Lender, the Issuing Lender and (if applicable) the Company, with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any LoansLoan, the Revolving Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C IssuerCompany, the Swingline Lender, the Issuing Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders or the consent of a particular Lender or the consent of the Required Revolving Lenders, Required Term A Lenders or Required Term B Lenders, in each case as described in clauses (a) through (h) of the first proviso to Section 11.0111.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3 and 11.05 11.5 as though it were also a Lender hereunderhereunder (provided, with respect to Sections 4.1 and 4.3, the Company shall not be required to pay any amount which it would not have been required to pay if no participating interest had been sold), and except that, if amounts outstanding under this Agreement are due and -118- 127 unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each the 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. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice.
(ed) Notwithstanding any other provision in this Agreement, (i) any Lender may at any time pledge or assign a security interest in all or any portion of its rights under and interest in this Agreement and any Note held by it to secure obligations any Affiliate of such LenderLender that is an "Eligible Assignee" or create a security interest in, including or pledge all or any pledge or assignment to secure obligations to a portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such security interest in any manner permitted under applicable law and (ii) any Lender from which is a fund may, pledge all or any portion of its Loans and Notes to its trustee in support of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoto its trustee.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the prior written consent of the Borrower and the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, provided that no consent of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another an Affiliate of such Lender) all or any part of the Loans and the Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of the lesser of $1,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative Agent in their sole and absolute discretion) and the full remaining amount of such Lender's Loans or Commitments (except that no such minimum shall be applicable on an assignment to a Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000); and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherprovided, however, that Holdings the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Eligible Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Eligible Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Eligible Assignee; (Cii) such Lender and its Eligible Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Eligible Assignee shall have has paid to the Administrative Agent a registration and processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,000.
(b) From Upon the request of the Eligible Assignee, solely to facilitate the pledge or assignment of its Loans to any Federal Reserve Bank, the Borrower shall issue Notes to the Eligible Assignee. Upon the request of the assignor Lender, if applicable, solely to facilitate the pledge or assignment of its Loans to any Federal Reserve Bank, the Borrower shall issue a reduced Note to such assignor in exchange and after replacement for its then existing Note.
(c) The Administrative Agent, on behalf of the date that Borrower, shall maintain at the address of the Administrative Agent notifies the assignor Lender that specified on Schedule 11.2 (or at such other address as may be designated by the Administrative Agent has received from time to time in accordance with Section 11.2) a copy of each Assignment and Acceptance delivered to it and a register (andthe "Register") for the recordation of the names and addresses of the Lenders and the Commitment of and principal amount of the Loans owing to each Lender from time to time. The entries in the Register shall be conclusive, if requiredin the absence of manifest error, provided its consent and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and received any other consents required under this Section 11.08from time to time upon reasonable prior notice.
(d) Upon its receipt of an executed Assignment and Acceptance executed by an assigning Lender and payment an Eligible Assignee (and consented to by the Administrative Agent and, in the case of an Eligible Assignee that is not an Affiliate of the above-referenced assigning Lender, by the Borrower (in each case such consent not to be unreasonably withheld)) together with payment to the Administrative Agent of the registration and processing feefee described in clause (a)(iii), the Administrative Agent shall record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Immediately upon the recordation of such information in the Register, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom, and (i) the Eligible 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, Documents and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(de) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings the Borrower and which is also an Eligible Assignee (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating "Originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01Borrower and
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3 and 11.05 11.5 as though it were also a Lender hereunder, but shall not be entitled to any greater amount than would be payable to the original Lender if no participation had been made and 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.
(ef) Subject to Section 11.9, the Borrower authorizes each Lender to disclose to any Eligible Assignee or Participant (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to such Transferee or prospective Transferee becoming a party to this Agreement; provided, however, that neither the Administrative Agent nor any Lender shall provide to any Transferee or prospective Transferee any of the Confidential Information unless such person shall have previously executed a confidentiality agreement containing substantially similar terms to the terms specified in Section 11.9.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, or any successor thereto, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Liquidity Facility (Evenflo & Spalding Holdings Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative AgentBorrower, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (provided that such consent shall not be required at any time that a Default or an Event of Default exists or in connection with any assignment by a Lender to another Lender or to an Eligible Assignee that is an Affiliate of a Lender or a Related Fund of a Lender), and the Agent, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, provided that such consent of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Agent or the Administrative Agent, the L/C Issuer or the Swingline Lender Borrower shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an “Assignee”) all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $1,000,000 (or such lesser amount to which the Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; provided, however, that any assignment of the Swing Line Commitment and provided Swing Line Loans thereunder (x) shall require the prior written consent of Agent which may be granted or withheld in its sole discretion and (y) shall be in the full amount of the Swing Line Commitment and outstanding Swing Line Loans at such time; provided, further, however, that Holdings in no event shall more than one Lender hold the Swing Line Commitment and Swing Line Loans at any time; and provided, further, however, in all instances, that the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form and substance reasonably satisfactory to Agent, such Lender and its Assignee (an “Assignment and Acceptance”); and
(Ciii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee3,500, only one such provided no processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any be required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only paid in connection with an assignment transaction involving by a Lender to an assignment Eligible Assignee that is an Affiliate of all such Lender. No less frequently than once every fiscal quarter, Agent shall notify Swing Line Lender of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified any assignments made to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansentity that was not previously a Lender.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, ; and
(ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 .
(c) Subject to the extent such rights relate provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the time prior to the effective date Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitment of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Documents; provided, however, that that:
(i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, and ; and
(iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01subsection 9.1(a). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall not 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 any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(e) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or (i) assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided , (ii) in the case of any Lender that no is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such pledge or assignment shall release Loans) to the trustee under any indenture to which such Lender from any is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or substitute any pledged Loans to the extent of such pledgee payment. No such assignment or assignee for such pledge shall release the assigning Lender as a party heretofrom its obligations hereunder.
(f) Notwithstanding The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Commitments, Loans and any provision Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in this Section 11.08 the Register. Any assignment or transfer of all or part of a Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the contrarydesignated assignee and, no registration or processing fee if applicable, assignor, and the old Notes shall be payable in connection returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any assignment by W▇▇▇▇ Fargoentry relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Panther Expedited Services, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), Bank may at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, all or any ratable part a portion of all, of the Loans, the Commitment, the L/C Obligations and the other its rights and obligations under this Agreement (including all or a portion of such Lender hereunderits Revolving Commitment, Incremental Revolving Commitment (if any) and the Loans (including for purposes of this subsection (a), participations in Letter of Credit Obligations) at the time owing to it); provided, however, that (i) except in the case of an assignment of the entire remaining amount of the assigning Bank's Commitment and the Loans at the time owing to it, after giving effect to any such assignment no written consent of Holdings shall be required during the existence Bank, Affiliate of a Default Bank or an Event Approved Fund with respect to a Bank shall hold Nexstar Loans and Loans hereunder aggregating less than $10,000, determined as of Defaultthe date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date; (ii) no written consent each such assignment of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall Loans hereunder must be required in connection consummated simultaneously with any an assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within among the same “family parties of funds” a corresponding percentage of the corresponding Class of Nexstar Loans and/or commitments (as such assigning Lender, provided that if applicable) under the proposed Assignee is another Lender, Nexstar Credit Agreement in accordance with the Lender seeking to assign its interests hereunder shall consult with Holdings and terms of the Administrative Agent before entering into such assignmentNexstar Credit Agreement; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be made as an assignment of a ratable proportionate part of all the Loans, the Commitment and the other interests, assigning Bank's rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance under this Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially Loans or the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the AssigneeCommitment assigned; (Civ) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall Commitment must be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice approved by the Administrative Agent and the Issuing Bank unless the Person that it has received is the proposed assignee is itself a Bank (and, if necessary, consented towhether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (v) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings parties to each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided that with respect to any new Note requested assignment between a Bank and an Affiliate of such Bank or an Approved Fund of such Bank, such processing and recordation fee shall be in the amount of $1,500. Only one such fee shall be payable with respect to the assignment of Loans hereunder and the simultaneous assignment among the same parties of a corresponding percentage of the corresponding Class of Nexstar Loans and/or commitments (as applicable) under the Nexstar Credit Agreement. The Borrower, the Issuing Bank and the Administrative Agent hereby grant the consent required by the immediately preceding sentence with respect to any assignment that any Bank may from time to time make to any Affiliate of a Bank or any Approved Fund or any assignment that any Bank may from time to make to any other Bank or any Affiliate of a Bank or any Approved Fund provided that the Borrower and the Administrative Agent are each given at least three (3) Business Days written notice prior to the effective date of such assignment. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (b) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignee evidencing Assignment and Assumption, have the rights and obligations of a Bank under this Agreement, and the assigning Bank thereunder shall, to the extent of the interest assigned by such Assignee’s assigned Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.01, 4.03, 4.04, 12.04 and 12.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with subsection (c) of this Section.
(b) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent's Payment Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitments of, and principal amounts of the Loans and Commitment andLetter of Credit Obligations owing to, if each Bank pursuant to the assignor Lender has retained terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(c) Any Bank may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Bank's rights and/or obligations under this Agreement (including all or a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing Commitments and/or the Loans and Commitment retained by the assignor Lender (including such Note Bank's participations in Letter of Credit Obligations) owing to be in exchange for, but not in payment of, the Note held by such Lender, if anyit).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s such Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) Holdingsthe Borrower, the L/C Issuer, the Swingline Lender Issuing Bank and the Administrative Agent and the other Banks shall continue to deal solely and directly with the originating Lender such Bank in connection with the originating Lender’s such Bank's rights and obligations under this Agreement and the other Loan Documents, . Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in clause (i), subsections (B), (D) and (I) of the first proviso to Section 11.0112.01 that directly affects such Participant. In the case Subject to subsection (e) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 4.04 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to subsection (d) of this Section. To the amount extent permitted by law, each Participant also shall be entitled to the benefits of its participating interest Section 12.09 as though it were owing directly a Bank, provided such Participant agrees to be subject to Section 4.04(f) as though it were a Bank.
(d) A Participant shall not be entitled to receive any greater payment under any provision of this Agreement than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant which is organized under the laws of a jurisdiction outside the United States shall not be entitled to the benefits of Section 4.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 4.04(f) as though it were a Lender under this AgreementBank.
(e) Notwithstanding any other provision in this Agreement, any Lender Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such LenderBank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender Bank from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender Bank as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to As used herein, the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.following terms have the following meanings:
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative AgentCompany at all times other than during the existence of an Event of Default, the L/C and any LC Issuer and the Swingline LenderAgent, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that (i) no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank, and (ii) the written consent of the LC Issuers shall be required for each assignment and delegation) (each an “Assignee”) all, or any ratable part of all, of the Loanssuch Bank’s Outstanding Credit Exposure, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000 (or such lesser amount as the Company and the Agent may consent); provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit I (“Assignment and Acceptance”) and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood 3,500, provided that with respect in the case of a transfer under Section 3.08, the assignor Bank shall not be obligated to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one pay such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansfee.
(b) From and after the date that the Administrative Agent notifies the Company and the assignor Lender Bank that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance which has been consented to by the Agent, the LC Issuers and by the Company (if required), and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.a
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company (at all times other than during the existence of an Event of Default), the Administrative Agent, the L/C Issuer Issuing Lender and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or Company, the Administrative Agent, the L/C Issuer Issuing Lender or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; a Person described in clause (iii) except in connection with of the definition of Eligible Assignee) (each, an assignment of all of a Lender’s rights and obligations with respect to its Commitment"Assignee") all, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Commitments, the L/C Obligations and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $5,000,000 (or, if less, all of such Lender's remaining rights and obligations hereunder); and provided furtherthat (A) the Company, howeverthe Administrative Agent, that Holdings the Issuing Lender and the Administrative Agent Swingline Lender may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, Assignee shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; , (Cii) such Lender and the Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit L (an "Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (DB) the Administrative AgentCompany shall not, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with as a result of any assignment by W▇▇▇▇ Fargoany Lender to any of such Lender's Affiliates, incur any increased liability for Taxes, Other Taxes or Further Taxes pursuant to Section 4.1. The Company designates the Administrative Agent as its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment agent for maintaining a book entry record of all of its Commitment and Loans, ownership identifying the Lenders and the Assignment amount of the respective Loans and Acceptance may Notes which they own. The foregoing provisions are intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be appropriately modified in "registered form" pursuant to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssuch regulation.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent consent, and received the consents of the Swingline Lender, the Issuing Lender and (if applicable) the Company, with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any LoansLoan, the Commitment Commitments of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C IssuerCompany, the Swingline Lender, the Issuing Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders or the consent of a particular Lender, in each case as described in the first proviso to Section 11.0111.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3 and 11.05 11.5 as though it were also a Lender hereunderhereunder (provided, with respect to Sections 4.1 and 4.3, the Company shall not be required to pay any amount which it would not have been required to pay if no participating interest had been sold), and 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 the 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. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation.
(ed) Notwithstanding any other provision in of this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge all or any portion of of, its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Rayovac Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower (other than during the existence of a Default or Event of Default in which event the Borrower's consent shall not be required) and the Agent, the L/C Issuer and the Swingline Lenderwhich consent, and in the case of an assignment of Revolving Loans, Holdings (which in each case case, shall not be unreasonably withheldwithheld (which consent of the Borrower and the Agent shall not be required if the Eligible Assignee is an Affiliate of such Lender or is another Lender), provided that such assignment shall not result in increased costs to the Borrower pursuant to Section 2.11, at any time assign and delegate to one or more Eligible Assignees Lender (each an “"Assignee”") all, or any ratable part of all, of the LoansNotes, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum amount of not less than $5,000,000 and, after giving effect to such assignment, the assigning Lender's or selling Lender's Proportionate Share of the Notes and L/C Obligations shall equal an amount that it not less than $10,000,000, in each case, unless otherwise agreed in writing by the Borrower and the Agent; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note subject to such assignment; and (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans4,000.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Transaction Documents.
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrower shall execute and deliver to the Agent, a new Note evidencing such Assignee's assigned Proportionate Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Note in the principal amount of the Proportionate Share of the Loans retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date Proportionate Share of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Loans.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Holdings the Borrower (a “"Participant”") participating interests in any the Loans, the Commitment of that Lender L/C Obligations and the other interests of that Lender (the “originating "Originating Lender”") hereunder and under the other Loan Transaction Documents; provided, however, that (i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, Transaction Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender; and provided further that, and it is hereby agreed that, the Borrower shall not be obligated to make any greater payment or otherwise incur any greater cost or liability under Section 2.11 than had no such sale of a participating interest occurred.
(e) Each Lender agrees to maintain the confidentiality of all information identified as "confidential" by the Borrower and provided to it by the Borrower, or by the Agent on the Borrower's behalf, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or one of its affiliates; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender's independent auditors and other professional advisors. If the Agent or any Lender discloses any such confidential information pursuant to the provisions of the Lenders as described in the first proviso to Section 11.01. In the case of any such participationimmediately proceeding proviso, the Agent or such Lender shall seek to obtain assurance that confidential treatment will be accorded to such confidential information; provided, however, that neither the Agent nor any Lender shall have any liability for the failure to obtain such confidential treatment. Notwithstanding the foregoing, the Borrower authorizes each Lender to disclose to any Participant shall be entitled or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender's possession concerning a Borrower or a Subsidiary Guarantor which has been delivered to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under Agent or the Lenders pursuant to this Agreement are due and unpaid, or shall have which has 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 delivered to the same extent as if Agent or the amount Lenders by the Borrower or a Subsidiary Guarantor in connection with the Lenders' credit evaluation of its participating interest were owing directly the Borrower and the Subsidiary Guarantors prior to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in entering into this Agreement, 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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee participant or assignee for such Lender as (or prospective participant or assignee) agrees in writing to be bound by a party heretoconfidentiality agreement similar to the provisions of this Section 10.11(e).
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Transaction Document to the contrary, no registration any Lender may assign all or processing fee shall be payable in connection with any assignment portion of its Proportionate Share of the Notes and the L/C Obligations held by W▇▇▇▇ Fargo.it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of the Administrative AgentAgent and, but only so long as there does not exist an Event of Default, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees financial institutions (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunderhereunder in a minimum amount of $5,000.000.00; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Company and the Agent an Assignment and Assumption Agreement; and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500.00. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeAssumption Agreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAssumption Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Percentage Share arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Holdings (each a “Participant”) participating interests in any Loans, the Commitment funding commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent 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, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $5,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such 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 heretoFederal Reserve Lender.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderIssuing Bank, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent or the Issuing Bank shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such assigning Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of the lesser of (i) $5,000,000 or (ii) the full amount of the Loans, the Commitments and the other rights and obligations of such Bank; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance"), requiring, among other things, that any Assignee agree to be bound by the UK/US Intercreditor Agreement and the Securitization Intercreditor Agreement and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee3,500, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agentprovided, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with further any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may shall be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment subject to the restrictions of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansWarrant Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-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 Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish .
(c) Immediately upon each Assignee's making its rights processing fee payment under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender Bank pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “originating Lender”"Originating Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Originating Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating Lender’s Originating Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3 and 11.05 10.5 as though it were also a Lender hereunder, and except that, Bank hereunder provided that all amounts payable by the Borrower hereunder shall be determined as if such Originating Bank had not sold such participation. 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 Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR '203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any The Lender may, with the written consent of the Administrative Agent, Borrower at all times other than during the L/C Issuer and the Swingline Lender, and in the case existence of an assignment Event of Revolving LoansDefault, Holdings (which in each case consent of the Borrower shall not be unreasonably withheld), at any time assign sell, assign, transfer and delegate to one or more Eligible Assignees (provided that no written consent of the Borrower shall be required in connection with any sale, assignment, transfer and delegation by the Lender to an Eligible Assignee that is an Affiliate of the Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lenderthe Lender hereunder; and provided furtherprovided, however, that Holdings and the Administrative Agent Borrower may continue to deal solely and directly with such the Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent Borrower by such the Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) such Assignee have executed an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (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 the Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shallLender, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Telvent Git S A)
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the Administrative Agentparties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Issuer and Obligations) at the Swingline Lender, and time owing to it); provided that
(i) except in the case of an assignment of Revolving Loansthe entire remaining -------- amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, Holdings the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in each case the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheldwithheld or delayed), at any time assign and delegate to one or more Eligible Assignees (ii) each partial assignment shall be made as an “Assignee”) all, or any ratable assignment of a proportionate part of allall the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the Loansinterest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.01, 4.02 and 4.05 with respect to ------------- ---- ---- facts and circumstances occurring prior to the effective date of such assignment). Upon request, the CommitmentBorrowers (at their expense) shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in -------- the Register shall be conclusive, and the other rights Borrowers, the Administrative Agent and obligations 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 such Lender hereunder; providedthis Agreement, however, that (i) no written consent of Holdings notwithstanding notice to the contrary. The Register shall be required during available for inspection by the existence of a Default Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or an Event of Default; (ii) no written consent of Holdings notice to, the Borrowers or the Administrative Agent, the L/C Issuer sell participations to any Person (other than a natural person or the Swingline Lender shall be required Company or any of the Company's Affiliates or Subsidiaries (each, a "Participant") in connection with any assignment and delegation by all or a Lender to an Eligible Assignee that is another Lender or an Affiliate portion of such assigning Lender Lender's rights ----------- and/or obligations under this Agreement (including all or within a portion of its Commitment and/or the same “family of funds” as Loans (including such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except 's participations in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations) owing to it); provided that (i) such Lender's obligations under -------- this Agreement shall remain unchanged, any (ii) such assignment Lender shall remain solely responsible to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; the other parties hereto for the performance of such obligations and (iviii) each such partial assignment shall be of a ratable part of the LoansBorrowers, the Commitment Administrative Agent and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may Lenders shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such -------- Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in Participant, agree to any amendment, waiver or other modification that would (i) postpone any date upon which any payment of money is scheduled to be paid to such Participant, (ii) reduce the first proviso principal, interest, fees or other amounts payable to Section 11.01such Participant, or (iii) release any Guarantor from the Master Guaranty and Intercreditor Agreement. In the case Subject to subsection (e) of any such participationthis Section, the each Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.01, 4.03 4.02 and 11.05 as though it were also a Lender hereunder, and 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 4.05 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 it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to subsection (b) of this Agreement.Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.09 ------------- as though it were a Lender, provided such Participant agrees to be subject to -------- Section 2.13 as though it were a Lender. ------------
(e) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 4.01 or 4.02 than the applicable Lender would have been entitled ----------- ---- to receive with respect to the participation sold to such Participant, any unless the sale of the participation to such Participant is made with the Company's prior written consent. A Participant that would be a foreign Person if it were a Lender shall not be entitled to the benefits of Section 4.01 unless the Company ------------ is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 4.01 as though ---- it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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.
(fg) Notwithstanding any provision in this Section 11.08 to As used herein, the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.following terms have the following meanings:
Appears in 1 contract
Sources: Credit Agreement (Aecom Merger Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), A Bank may at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") allwith the written consent of the Borrower (other than during the existence of an Event of Default) and of the Agent (at all times), which consent shall not be unreasonably withheld (provided that no written consent shall be required for an Eligible Assignee that is an Affiliate of such assignor Bank) all or any ratable part of all, its Pro Rata Share of the Loans, the Commitment, the L/C Obligations Loan and the other rights and obligations of such Lender assignor Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part permitted if the effect thereof is to cause the remaining Commitment of the Loansassignor Bank to be less than $12,500,000. However, the Commitment such assignment shall be conditioned on, and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender assignor Bank until, (i) written notice of such assignment, substantially in connection with the interest so assigned form of the attached Exhibit A shall have been given to an Assignee until the Borrower and the Agent by such Bank and the Assignee; (Aii) such Lender Bank and its Assignee shall have delivered to Holdings the Agent and the Administrative Agent Borrower an Assignment and Acceptance Assumption Agreement substantially in the form of the attached Exhibit E B (“"Assignment and Acceptance”), Assumption Agreement") (together with any Note or Notes Note(s) subject to such assignment); and (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (Ciii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent has received (and, if required, provided its consent with respect thereto all conditions and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment requirements of the above-referenced processing feeassignment have been met, then to the extent that rights and obligations hereunder have been assigned (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor Bank shall relinquish such assigned rights and be released from such assigned obligations under the Loan Documents, (iiiii) this Agreement shall be deemed to be amended to the extent, but only to the extent, extent necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Pro Rata Shares of the Loan arising therefrom, and (iiiiv) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Pro Rata Share allocated to each an Assignee shall reduce the Commitment, Loans and L/C Obligations Pro Rata Share of the assigning Lender pro tantoBank.
(c) Within five A Bank (5the "originating Bank") Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoan; provided, however, provided that (i) the originating Lender’s Bank's obligations under this the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s rights Loan and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent or waiver with respect to, this Agreement or to any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described Banks, and (v) each participating interest shall be in a minimum amount of $5,000,000, and no such participation shall be permitted if the first proviso to Section 11.01non-participated interest of the originating Bank would thereafter be less than $12,500,000. In the case of any such participation, the A Participant shall be entitled to not have any rights under the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Loan Documents or the Co-Lender hereunderAgreement, and except that, if all amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon by the occurrence of an Event of Default, each Participant Borrower hereunder 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 determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementoriginating Bank had not sold such participation.
(ed) Notwithstanding any other provision in this Agreementprovision, any Lender a Bank may at any time pledge or assign a security its interest in all or the Loan in favor of 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; 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 heretoBank in accordance with Federal law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Each Lender may, with without the written consent of the Borrower, but with prior notice to the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at sell or assign any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, the Loan of the Loans, the Commitment, the L/C Obligations such Lender and the other rights and obligations of such Lender hereunder; providedto any Person or any assignee thereof (an "Assignee") unless the sale or assignment of the Loan and such other rights and obligations of such Lender would reasonably put the business of the Borrower at a competitive disadvantage, however, that (i) no written then such sale or assignment shall require the consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such Borrower. The assigning Lender or within and the same “family of funds” as such assigning LenderAssignee shall enter into an assignment agreement, provided that if the proposed Assignee is another Lender, the Lender seeking in form and substance satisfactory to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“"Assignment and Acceptance”"), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form sale or assignment of the Notice Loan to be assigned and, subject to paragraphs (e) and (f) of Assignment this Section 9.11, upon execution and Acceptance attached as Schedule 1 to the delivery of such Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, (ii) and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee and to the resulting adjustment extent of the Commitments, Loans and L/C Obligations arising therefromtheir respective interests, and (iiiii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptanceassignment agreement, relinquish its rights and be released from its obligations under the Loan Financing Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(cb) Within five Each Lender may sell participations to one or more banks or other entities (5other than the Borrower or any of its Affiliates) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent in or to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained all or a portion of its Loans rights and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans obligations under this Agreement and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents's Note; provided, however, that (i) the originating such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Holdingssuch Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (ivv) no Lender participant under any such participation in an amount less than $50,000,000 shall transfer or grant have any participating interest under which the Participant has rights right to approve any amendment toor waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or waiver consent would reduce the principal of, or interest on, the Note or any fees or other amounts payable hereunder, or release of all or substantially all of the Collateral, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(c) A Lender may, in connection with respect toany assignment or participation or proposed assignment or participation pursuant to this Section 9.11, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided, that prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender.
(d) Notwithstanding any other provision contained in this Agreement or any other Financing Document to the contrary, any Lender may assign all or any portion of the Loan Documentheld by it as collateral security, except provided that any payment in respect of such assigned Loan or Note made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect to such assigned Loan or Note to the extent of such amendment, consent or waiver would require unanimous consent of payment. No such assignment shall release the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a assigning Lender from its obligations hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for purposes of this Section 9.11, to maintain a register (the "Register") on which it will record the Loans made by each of the Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any other provision such recordation, or any error in this Agreementsuch recordation shall not affect the Borrower's obligations in respect of such Loans. With respect to any Lender, the transfer of the rights to the principal of, and interest on, any Lender may at any time pledge Loan shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Loans and prior to such recordation all amounts owing to the transferor with respect to such Loans shall remain owing to the transferor. The registration of assignment or assign a security interest in transfer of all or part of any portion Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Acceptance pursuant to Section 9.11(a). The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its rights duties under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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 heretoSection 9.11(e).
(f) Notwithstanding Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in any provision in case where the consent of the Borrower is required by this Section 11.08 Section, by the Borrower) together with payment to the contrary, no Administrative Agent of a registration or and processing fee of $3,500, the Administrative Agent shall be payable (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in connection with any assignment the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan acquired by W▇▇▇▇ Fargoit pursuant to such Assignment and Acceptance and, if such assigning Lender has retained a Loan, a new Note to the order of such assigning Lender in an amount equal to the Loan retained by it hereunder.
Appears in 1 contract
Sources: Credit Agreement (Pg&e Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Issuing Bank, Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Swingline LenderCompany, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer Issuing Bank, the Swing Line Lender or the Swingline Lender Company shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all of, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lenderany part of, the Lender seeking to assign its interests hereunder shall consult with Holdings Loans, the Commitments, the L/C Obligations and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s other rights and obligations with respect to its Commitmentof such Lender hereunder, in a minimum aggregate Dollar Equivalent of $5,000,000 (or, if less, the entire amount of such Lender's Loans and Commitments, and such Loans and Commitments may consist of the Revolving Loan Commitments, the Term Loan Commitments and the Sterling Acquisition Loan Commitments as determined by the assigning Lender) calculated by aggregating the Commitments, Loans and L/C Obligations, any such assignment to Obligations held by an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000which are Affiliates; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherprovided, however, that Holdings each Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings each Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to each Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E attached hereto ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Documents (other than with respect to any indemnification pursuant to Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any12.05).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of the Administrative AgentAgent and, the L/C Issuer but only if there has not occurred and the Swingline Lenderis continuing an Event of Default or Potential Default, and in the case of an assignment of Revolving LoansMAC, Holdings (which in each case shall such consents not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings MAC or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Affiliate of such Lender or to another Lender or its Affiliate and (ii) MAC shall be deemed to have consented to any such assignment and delegation unless it shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof) (each an “Assignee”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) and the other Obligations held by such Lender hereunder, in a minimum amount of $5 million (or (A) if such Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning a Lender, provided that if the proposed Assignee is another Lender$1 million, the Lender seeking to assign its interests hereunder shall consult with Holdings and or such lesser amount as agreed by the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000Agent; and (ivB) each if such partial assignment shall be of a ratable part of the Loans, the Lender’s Commitment (or Revolving Commitment and the other interestsTerm Loan Credit Exposure) is less than $5 million, rights and obligations hereunder of such assigning Lenderone hundred percent (100%) thereof); and provided furtherprovided, however, that Holdings MAC, the Borrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent by such Lender and the AssigneeAssignee and such assignment shall have been recorded in the Register in accordance with Section 11.8(1)(B); (Cii) the assignor such Lender or and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance Agreement and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) 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 CommitmentsCommitments resulting therefrom.
(B) Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans and L/C Obligations arising therefromlisted therein for all purposes hereof, and (iii) no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until receipt by Administrative Agent of a fully executed Assignment and Acceptance Agreement effecting the assignor Lender shallassignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 11.8(1). Each assignment shall be recorded in the Register promptly following receipt by the Administrative Agent of the fully executed Assignment and Acceptance Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to the extent that rights Borrower and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to a copy of such Assignment and AcceptanceAcceptance Agreement shall be maintained, relinquish its rights and be released from its obligations under as applicable. Any request, authority or consent of any Person who, at the Loan Documents; providedtime of making such request or giving such authority or consent, however, that is listed in the assignor Register as a Lender shall not relinquish its rights under Article IV be conclusive and binding absent manifest error on any subsequent holder, assignee or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date transferee of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantocorresponding Commitments or Loans.
(c2) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance Agreement and payment of the processing fee (and provided that which notice shall also be sent by the L/C IssuerAdministrative Agent to each Lender), the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a))Borrower shall, Holdings shall if requested by the Assignee, execute and deliver to the Administrative Agent any Agent, a new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Revolving Commitment and, if the assignor Lender has retained a and/or new Note evidencing such Assignee’s portion of its Loans and its Commitment, replacement Notes as requested by each Series of the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Term Loans.
(d3) Any Lender may at any time time, without notice to or the consent of any other Person, sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in all or any Loans, the Commitment portion of that Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of that Lender its Commitments and the Loans owing to it) (the “originating Originating Lender”) hereunder and under the other Loan Documents); provided, however, that (i) 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, and (iii) Holdingsthe Borrower, the L/C IssuerIssuing Lender, the Swingline Swing Line Lender and the Administrative 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.012.5, 4.03 2.6 and 11.05 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above), and the benefits of Section 2.10 (subject to the requirements and limitations therein, including the requirements under Section 2.10(6) (it being understood that the documentation required under Section 2.10(6) shall be delivered to the participating Lender)) as though it were also a Lender hereunderthereunder, and 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, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(e4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any 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 owing to secure obligations it) to any Federal Reserve Bank or other central bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank or other central bank, provided that any payment in respect of such Lenderassigned interests made by the Borrower to or for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned interests to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(5) Each Lender that sells a participation shall, including any pledge acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one of its offices a register on which it enters the names and addresses of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or assignment to secure other obligations to a Federal Reserve Bankunder this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such pledge disclosure is necessary to establish that such Commitment, Loan or assignment 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 release be conclusive absent manifest error, and such Lender from shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(6) No Lender may assign or otherwise transfer any of its rights or obligations hereunder or substitute any such pledgee or except (i) to an assignee for such Lender as a party hereto.
in accordance with the provisions of paragraph (f1) Notwithstanding any provision in of this Section 11.08 11.8, (ii) by way of participation in accordance with the provisions of paragraphs (3) and (5) of this Section 11.8, or (iii) by way of assignment of a security interest subject to the contrary, no registration restrictions of paragraph (4) of this Section 11.8 (and any other attempted assignment or processing fee transfer by any party hereto shall be payable in connection with any assignment by W▇▇▇▇ Fargonull and void).
Appears in 1 contract
Sources: Credit Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, Company at all times other than during the L/C Issuer existence of an Event of Default and the Swingline LenderAgent and the Issuing Bank, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company, the Agent or the Issuing Bank shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “Assignee”Assignee ) all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (Cii)_such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit E ( Assignment and Acceptance ) together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that (i) neither the Borrower nor the Guarantor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower or the Guarantor without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderLenders) any legal or equitable right, and remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in the case of an assignment of Revolving Loansparagraph (b)(ii) below, Holdings (which in each case shall not be unreasonably withheld), at any time Lender may assign and delegate to one or more Eligible Assignees assignees (each an “Assignee”) all, all or any ratable part a portion of all, of the Loans, the Commitment, the L/C Obligations and the other its rights and obligations under this Agreement (including all or a portion of such Lender hereunder; provided, however, that (iits Commitment and the Loans at the time owing to it) no with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of Holdings the Borrower shall be required during the existence of for an assignment to a Default or Lender, a Lender Affiliate or, if an Event of Default; Default has occurred and is continuing, any other assignee, and
(iiB) no written consent of Holdings or the Administrative Agent, provided that no consent of the L/C Issuer or the Swingline Lender Administrative Agent shall be required in connection with any for an assignment and delegation by to a Lender Affiliate.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an Eligible Assignee that is another assignment to a Lender or an Affiliate of such a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender or within subject to each such assignment (determined as of the same “family date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than US$5,000,000 unless each of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into otherwise consent; provided, that no such assignment; consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(iiiB) except in connection with each partial assignment shall be made as an assignment of a proportionate part of all of a the assigning Lender’s rights and obligations with under this Agreement;
(C) the Assignee and the Assignor in respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) of each such partial assignment shall be of a ratable part of the Loans, the Commitment execute and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; a processing and recordation fee of US$3,500;
(BD) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptanceif it shall not be a Lender, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid deliver to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative AgentQuestionnaire. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, Holdings, from and after the L/C Issuer and the Swingline Lender effective date specified in each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under Article IV or under Section 11.04 cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.05, 3.08, 3.09, 3.10, 3.11 and Section 11.05 11.05) (but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights relate or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section; and
(E) the Assignee will be a Canadian Resident Lender at the time that any amount is first paid or credited to or by such Assignee on account of the Obligations; provided that such Assignee will not be required to be a Canadian Resident Lender at such time if it is unable to so qualify as a Canadian Resident Lender as the result of any Change in Law; provided that for purposes of this clause (E), references in the defined term “Change in Law” to the time prior “date of this Agreement” shall be deemed to be references to the “effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated Acceptance pursuant to each which such Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantobecomes a party to this Agreement”.
(c) Within five The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (5) Business Days after Holding’s receipt of notice by the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that Lenders may treat each Person whose name is recorded in the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver Register pursuant to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment andterms hereof as a Lender hereunder for all purposes of this Agreement, if notwithstanding notice to the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested contrary. The Register shall be available for inspection by the assignor Borrower, and any Lender evidencing the Loans at any reasonable time and Commitment retained by the assignor Lender (such Note from time to be in exchange for, but not in payment of, the Note held by such Lender, if any)time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaires (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower, the Guarantor or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Holdings entities (each a “Participant”) participating interests in any Loans, the all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) 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, obligations and (iii) Holdingsthe Borrower, the L/C IssuerAdministrative Agent, the Swingline Lender and the Administrative Agent 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. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 11.0111.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.013.05, 4.03 3.06, 3.08, 3.09 and 11.05 as though it were also a Lender hereunder, and 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 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation in the minimum amount of its participating interest US$10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative 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 Borrower and the Administrative Agent to become a Voting Participant, 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 owing directly to it as a Lender, on any matter requiring or allowing a Lender under 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 11.08 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this Agreementparagraph.
(ef) Notwithstanding A Participant shall not be entitled to receive any other provision greater payment under Section 3.05, 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender. A Participant shall not be entitled to the benefits of Section 3.05 unless such Participant would qualify as a Canadian Resident Lender if it were a Lender at the time any amount is first paid or credited to or by such participant on account of the Obligations; provided that such Participant will be entitled to the benefits of Section 3.05 if it is unable to qualify as a Canadian Resident Lender as the result of any Change in Law; provided that for purposes of this paragraph (f), references in the defined term “Change in Law” to the “date of this Agreement, any ” shall be deemed to be references to the “effective date of the sale of the participation to such Participant”.
(g) 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 LenderLender to (i) a Federal Reserve Bank or (ii) the Farm Credit Funding Corp. or to any other entity organized under the Farm Credit Act, including as amended, and this Section shall not apply to any such pledge or assignment to secure obligations to of a Federal Reserve Banksecurity interest; provided that no such pledge or assignment of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee Assignee for such Lender as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
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Assignments, Participations, etc. (a) Any Lender mayNothing in this Agreement, with expressed or implied, shall be construed to confer upon any Person (other than the written consent parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderLenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees (each, an "Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment to a Lender or a Lender Affiliate, each of Revolving Loans, Holdings the Borrower and the Administrative Agent must give their prior written consent to such assignment (which in each case consent shall not be unreasonably withheld), at any time assign and delegate (ii) except in the case of an assignment to one a Lender or more Eligible Assignees (each a Lender Affiliate or an “Assignee”) all, or any ratable part of all, assignment of the Loans, entire remaining amount of the assigning Lender's Commitment, the L/C Obligations amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and the other rights and obligations of Acceptance with respect to such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or assignment is delivered to the Administrative Agent, ) shall not be less than $5,000,000 unless each of the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; otherwise consent, (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be made as an assignment of a ratable proportionate part of all the Loans, the Commitment and the other interests, assigning Lender's rights and obligations hereunder under this Agreement, except that this clause (iii) shall not apply to rights in respect of such assigning Lender; and provided furtheroutstanding Bid Loans, however, that Holdings (iv) the Assignee and the Administrative Agent may continue Assignor in respect of each assignment shall execute and deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and (Bv) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptanceif it shall not be a Lender, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid deliver to the Administrative Agent a processing fee an Administrative Questionnaire; and provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (f) or (g) of Section 8.01 has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all of the assigning Lender's rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under Article IV or under Section 11.04 cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.05, 3.08, 3.09, 3.10, 3.11 and Section 11.05 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights relate to the time prior to the effective date or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of the Assignment this Agreement as a sale by such Lender of a participation in such rights and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations obligations in accordance with paragraph (e) of the assigning Lender pro tantothis Section.
(c) Within five The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (5) Business Days after Holding’s receipt of notice by the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that Lenders may treat each Person whose name is recorded in the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver Register pursuant to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment andterms hereof as a Lender hereunder for all purposes of this Agreement, if notwithstanding notice to the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested contrary. The Register shall be available for inspection by the assignor Lender evidencing the Loans Borrower, and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such any Lender, if any)at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee's completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates entities (each a "Participant") in all or a portion of Holdings such Lender's rights and obligations under this Agreement (including all or a “Participant”) participating interests in any Loans, the portion of its Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) Holdingsthe Borrower, the L/C Issuer, the Swingline Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 11.0110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.013.05 (other than 3.05(f)), 4.03 3.06, 3.08, 3.09 and 11.05 as though it were also a Lender hereunder, and 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 3.10 to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to paragraph (b) of this AgreementSection. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender.
(ef) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 3.05, any 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender.
(g) 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 LenderLender to (i) a Federal Reserve Bank or (ii) the Farm Credit Funding Corp. or to any other entity organized under the Farm Credit Act, including as amended, and this Section shall not apply to any such pledge or assignment to secure obligations to of a Federal Reserve Banksecurity interest; provided that no such pledge or assignment of a security interest shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee Assignee for such Lender as a party hereto.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayNothing in this Agreement, with expressed or implied, shall be construed to confer upon any Person (other than the written consent parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderLenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees (each, an "Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment to a Lender or a Lender Affiliate, each of Revolving Loans, Holdings the Borrower and the Administrative Agent must give their prior written consent to such assignment (which in each case consent shall not be unreasonably withheld), at any time assign and delegate (ii) except in the case of an assignment to one a Lender or more Eligible Assignees (each a Lender Affiliate or an “Assignee”) all, or any ratable part of all, assignment of the Loans, entire remaining amount of the assigning Lender's Commitment, the L/C Obligations amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and the other rights and obligations of Acceptance with respect to such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or assignment is delivered to the Administrative Agent, ) shall not be less than $5,000,000 unless each of the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; otherwise consent, (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be made as an assignment of a ratable proportionate part of all the Loans, the Commitment and the other interests, assigning Lender's rights and obligations hereunder under this Agreement, except that this clause (iii) shall not apply to rights in respect of such assigning Lender; and provided furtheroutstanding Bid Loans, however, that Holdings (iv) the Assignee and the Administrative Agent may continue Assignor in respect of each assignment shall execute and deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and (Bv) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptanceif it shall not be a Lender, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid deliver to the Administrative Agent a processing fee an Administrative Questionnaire; and provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (f) or (g) of Section 8.01 has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documents; providedcase of an Assignment and Acceptance covering all of the assigning Lender's rights and obligations under this Agreement, however, that the assignor such Lender shall not relinquish its rights under Article IV or under Section 11.04 cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.05, 3.08, 3.09, 3.10, 3.11 and Section 11.05 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights relate to the time prior to the effective date or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of the Assignment this Agreement as a sale by such Lender of a participation in such rights and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations obligations in accordance with paragraph (e) of the assigning Lender pro tantothis Section.
(c) Within five The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (5) Business Days after Holding’s receipt of notice by the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that Lenders may treat each Person whose name is recorded in the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver Register pursuant to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment andterms hereof as a Lender hereunder for all purposes of this Agreement, if notwithstanding notice to the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested contrary. The Register shall be available for inspection by the assignor Lender evidencing the Loans Borrower, and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such any Lender, if any)at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee's completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates entities (each a "Participant") in all or a portion of Holdings such Lender's rights and obligations under this Agreement (including all or a “Participant”) participating interests in any Loans, the portion of its Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) Holdingsthe Borrower, the L/C Issuer, the Swingline Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 11.0110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.013.05 (other than 3.05(f)), 4.03 and 11.05 as though it were also a Lender hereunder3.06, and except that3.08, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.3.09 and
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “Assignee”"ASSIGNEE") all, or any ratable part of all, of the Loans, the Commitmentobligations, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Administrative Agent an assignment and acceptance agreement in the form of EXHIBIT G ("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(aSUBSECTION 10.8(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment Loans, Obligations and, if the assignor Lender Bank has retained a portion of its Loans and its CommitmentLoans, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)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 Administrative Agent shall deliver a revised SCHEDULE 2.1 to the Banks and the Borrower to reflect such assignment.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”"PARTICIPANT") participating interests in any Loans, the Commitment of that Lender Loans and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent postpone or delay any date fixed for payment of principal, interest, fees or other amounts hereunder or reduce the Lenders as described in the first proviso to Section 11.01principal of or rate of interest specified herein. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to the consents required under Section 11.08(b), each Lender reserves the right, at any time, to syndicate its Commitments, Loans, rights and obligations under this Agreement and the Loan Documents to one or more Eligible Assignees identified by it. Upon request, Borrowers shall actively assist each such Lender in connection with any proposed syndication.
(b) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same to a bank loan fund managed by such Lender) (each an “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; Assignee”) (iiii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Commitments, the L/C Obligations and the other interests, rights and obligations hereunder of such assigning LenderLender hereunder, or (ii) any ratable part thereof in a minimum amount of Five Million Dollars ($5,000,000); and provided further, howeverprovided, that Holdings Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Borrowers and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to Borrower Representative and Agent an Assignment and Acceptance in the form of Exhibit D (“Assignment and Acceptance”), and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of Two Thousand Five Hundred Dollars ($3,500 (it being understood that with respect to 2,500) unless the Assignee is an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansexisting Lender.
(bc) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and Acceptance, payment of the above-referenced processing feefee if required under Section 11.08(b), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents 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) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that .
(d) Immediately upon the assignor Lender shall not relinquish its rights under Article IV or giving of Agent’s notice under Section 11.04 and Section 11.05 11.08(b), this Agreement shall be deemed to be amended to the extent such rights relate extent, but only to the time prior extent, necessary to reflect the effective date addition of the Assignment Assignee and Acceptancethe resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(de) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings any Credit Party (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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, and (iii) HoldingsBorrowers, the L/C Issuer, the Swingline Lender Issuing Banks and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s Lender rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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.
(ef) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign grant a security interest in all in, or otherwise assign as collateral, any portion of its rights under this Agreement Agreement, whether now owned or hereafter acquired (including rights to secure obligations payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, including any pledge or assignment by notice to secure obligations to a Federal Reserve BankAgent; provided provided, however, that no such pledge holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall release be entitled to any rights of such Lender from hereunder and no such Lender shall be relieved of any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Swing Line Lender and the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (provided that no written consent of the Swing Line Lender or the Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of such Lender) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender hereunder, in a minimum amount of $10,000,000 (or, if less, all of such Lender's remaining rights and obligations hereunder); provided, however, that (x) no assignment and delegation may be made to any Person if, at the time of such assignment and delegation, (i) no written consent the Company would be obligated to pay any greater amount under Article III to the Assignee than the Company is then obligated to pay to the assigning Lender under such Article (and if any assignment is made in violation of Holdings shall the foregoing, the Company will not be required during to pay the existence of a Default or an Event of Default; incremental amounts) and (ii) no written consent of Holdings or the Administrative AgentAssignee has not presented evidence reasonably satisfactory to the Agent and the Company that the Assignee is exempt from withholding taxes and (y) the Company, the L/C Issuer or the Swingline Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit G ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent (and received the consent of the Swing Line Lender) with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdingsthe Company, the L/C Issuer, the Swingline Lender Agent and the Administrative Agent Swing Line Lender 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.2 and 11.05 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall receive any greater amount pursuant to Article III than would have been paid to the participating Lender if no participation had been sold), and 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. Notwithstanding any other provision of this Section, sales of participations required under the Intercreditor Agreement shall be permitted.
(ed) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Truserv Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative AgentCompany at all times other than during the existence of an Event of Default, the L/C each Alternate Currency Lender, each Alternate Currency LC Issuer and the Swingline Agent, which consents of the Company, each Alternate Currency Lender, each Alternate Currency LC Issuer and in the case of an assignment of Revolving Loans, Holdings (which in each case Agent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, PROVIDED that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to existing Lender) (each an "ASSIGNEE") all, or greater than $1,000,000; and (iv) each such partial assignment shall be of a any ratable part of all, of the LoansAssignable Credit Exposure of such Lender hereunder, in a minimum principal or face amount of $10,000,000; PROVIDED that (i) the Commitment Company and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company, each Alternate Currency Lender, each Alternate Currency LC Issuer and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Company, each Alternate Currency Lender, each Alternate Currency LC Issuer and the Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 3,500; (it being understood that ii) if the assignor Lender or any of its Affiliates is a Swap Provider with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one any Specified Swap Contract, such Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of assign all of its Commitment Assignable Credit Exposure to an Assignee unless such Assignee, or an Affiliate of such Assignee, shall also assume all obligations of such assignor Lender or Affiliate with respect to such Specified Swap Contracts, with the consent of the Company; and Loans(iii) if because of circumstances in effect on the effective date of any assignment, and the Assignment and Acceptance may Company would, under SECTION 3.1, be appropriately modified obligated to include an assignment and delegation make any payment to or for the account of its Swingline Commitment and any outstanding Swingline Loansthe applicable Assignee, the Company shall only be obligated to make such payment to the extent that it would then have been obligated to make such payment to the assignor Lender.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Credit Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Credit Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Revolving Commitments arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Revolving Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Revolving Commitment of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “Participant”"PARTICIPANT") participating interests in any Loans, the Revolving Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that of
(i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender’s 's rights and obligations under this Agreement and the other Loan Credit Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Credit Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01SECTION 10.
1. In the case of any such participation, (i) the Participant shall be entitled to the benefit of Sections 4.01SECTIONS 3.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender hereunder, PROVIDED that if because of circumstances in effect on the effective date of any sale of a participating interest, the Company would, under SECTION 3.1, be obligated to make any payment to or for the account of the applicable Originating Lender, the Company shall only be obligated to make such payment to the extent that it would then have been obligated to make such payment to such Originating Lender if it had not sold such participating interest, and (ii) the Participant shall not have any rights under this Agreement, or any of the other Credit Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Subject to Section 10.13(b) below, any Lender may, with the written prior consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Borrower (which in each case consent shall not be unreasonably withheldwithheld or delayed or conditioned, however, it will not be considered unreasonable for the Borrower to withhold consent if any such assignment (i) could have the effect of increasing the Borrower’s or any Guarantor’s costs under the Financing Documents, due to new or increased Taxes, or otherwise or (ii) is to Itau or Bradesco), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, all or any ratable part of all, of the Loans, the Commitment, the L/C Obligations its Loans and the other rights and obligations of such Lender hereunder; providedhereunder and under the other Financing Documents, howeverto another bank or financial institution. Any partial assignment of Loans under this Section 10.13(a) shall not be less than US$10,000,000 or any integral multiple of US$5,000,000 in excess thereof.
(b) Notwithstanding Section 10.13(a) above, that any Lender may, without the prior written consent of the Borrower, assign all or any part of its Loan and the other rights and obligations of such Lender hereunder and under the other Financing Documents (i) no written consent to an Affiliate of Holdings shall be required during such Lender, (ii) to another Lender, (iii) to any Person following the existence occurrence and continuance of a Default or an Event of Default; provided, if the Loans are assigned to Itau or Bradesco pursuant to this clause (iiiii), any breach of the obligations contained in the proviso to Section 5.25(b) no written consent is automatically deemed waived without any action on the part of Holdings any party hereto, or (iv) if requested to do so by the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection Borrower under Section 2.13; provided that only with any assignment and delegation by a Lender respect to an Eligible Assignee that is another Lender or assignments to an Affiliate of such a Lender or another Lender (A) the assigning Lender or within shall have given at least ten (10) Business Days’ prior written notice to the same “family of funds” as such assigning LenderBorrower, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder Security Agent of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such proposed assignment, together with payment instructions, addresses and related information with respect to the Assigneeassignee, (B) such proposed assignment would not result in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 any increase in Taxes or increased cost to the Assignment and AcceptanceBorrower, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender any partial assignment of any Loan under this Section 10.13(b) shall not be less than US$10,000,000 or Assignee shall have paid to the Administrative Agent a processing fee any integral multiple of US$5,000,000 in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assigneeexcess thereof, only one such processing fee is payable for the series of simultaneous assignments) and (D) each such assignment by a Lender of its Loans shall be made in such a manner so that the same portion of its Loans is assigned to the assignee. With respect to any assignment under this Section 10.13, the Borrower, the Administrative Agent, HoldingsAgent and the Security Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until the assigning Lender shall have delivered to the Borrower, the L/C Issuer Administrative Agent and the Swingline Lender each shall have provided any required consent Security Agent an Assignment and Acceptance substantially in the form of Exhibit A attached hereto (an “Assignment and Acceptance”) with respect to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and from the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansassigning Lender.
(bc) From Subject to Section 8.10, from and after the date that the Administrative Agent notifies the assignor assigning Lender and the Borrower that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, (ii) and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect effect the addition of the Assignee assignee, and any reference to the resulting adjustment assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the assignee to the extent of the Commitments, Loans and L/C Obligations arising therefromtheir respective interests, and (iiiii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Financing Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline any Lender and Holdings each consent to such assignment that assigns all of its Loans hereunder in accordance with Section 11.08(a)10.13 shall continue to have the benefit of indemnification provisions under this Agreement to the extent any indemnification relates to facts which occurred while it was a Lender (including Sections 2.8, 2.10, 2.11, 10.1 and 10.2), Holdings which shall execute and deliver survive as to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such assigning Lender, if any).
(d) Any Lender may (the “Originating Lender”) may, at its own cost, at any time after the initial Borrowing has occurred, sell to one or more commercial banks bank, financial institution, trust, fund or other Persons entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets which is not Affiliates an Affiliate of Holdings the Borrower, a Competitor or an Affiliate of a Competitor (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documentsits Loan; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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 Financing Documents, (iv) any such sale of participating interest shall not result in any increase in Taxes or increased cost to the Borrower or Guarantors and (ivv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Financing Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding not have any rights or claims under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon any of the occurrence of an Event of Default, each Participant shall be deemed to have other Financing Documents (the right of set off Participant’s rights against the Originating Lender in respect of its participating interest such participation to be those set forth in the agreement executed by the Originating Lender in favor of the Participant relating thereto) and all amounts owing under this Agreement to payable by the same extent Borrower hereunder shall be determined as if the amount of its participating interest were owing directly to it as a such Lender under this Agreementhad not sold such participation.
(e) Notwithstanding any other provision contained in this AgreementAgreement or any other Financing Document to the contrary, any Lender may at any time pledge or assign a as collateral security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any the Loans held by it; provided that
(i) the pledge or assignment as collateral security, its enforcement and payment thereunder would not result in any increased costs or Taxes on the Borrower or the Guarantors and (ii) any payment in respect of such assigned Loans made by the Borrower to secure or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to a Federal Reserve Bank; provided that no such pledge or assigned Loan to the extent of such payment. No such assignment shall release such the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding If:
(i) a Lender assigns or transfers any provision in this Section 11.08 of its rights or obligations under the Financing Documents or changes its Applicable Lending Office; and
(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to a permitted assignee or Lender acting through its new Applicable Lending Office under Sections 2.8 or 2.10, then the permitted assignee or Lender acting through its new Applicable Lending Office is only entitled to receive payment under those Sections to the contrarysame extent as the assigning Lender or Lender acting through its previous Applicable Lending Office would have been if the assignment, no registration transfer or processing fee change had not occurred.
(g) Subject to actions permitted under (x) clause 5.2(a) of the Fiduciary Assignment and (y) clause 5.2(a) of the Additional Fiduciary Assignments, the Borrower shall be payable in connection with not assign or otherwise transfer any assignment by W▇▇▇▇ Fargoof its rights and obligations under this Agreement or any other Financing Document without the prior written consent of the Administrative Agent (acting on the instructions of all Lenders).
Appears in 1 contract
Sources: Credit Agreement (Nii Holdings Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Commitments arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations Commitment of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Issuer and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it (other than in respect of Swingline Loans) in favor of (i) any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 C.F.R. §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law or (ii) a trustee or other representative for the benefit of security holders of a Lender to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment such Assignment by W▇▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of the Administrative Company, the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Issuing Bank (which in each case consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $25,000,000, in the amount of its Commitment.
(ii) Any Lender may without the prior consent of the Company assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment.
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and any note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section 5.09, shall assign to another Eligible Assignee its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may assign any Bid Loans made by it hereunder except to another Lender or to any other Person to which it is also assigning all or a fraction of its Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i).
(b) No assignment shall become effective, and the Company and the Agent shall be entitled to continue to deal solely and directly with each Lender in connection with the interests so assigned by such Lender to an Assignee, until (i) such Lender and such Assignee shall have executed an Assignment and Assumption Agreement substantially in the form of Exhibit 12.08(b) and written notice of such assignment, payment instructions, addresses, and related information with respect to such Assignee shall have been given to the Company and the Agent by such Lender and such Assignee, in substantially the form of Attachment A to Exhibit 12.08 (a "Notice of Assignment"); (ii) a processing fee in the amount of $3,500 shall have been paid to the Agent by the assignor Lender or the Assignee; and (iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to in clauses (i) and (ii) or (B) if earlier, the Agent has notified the assignor Lender and the Assignee of its receipt of the items mentioned in clauses (i) and (ii) and that it has acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment hereunder, (i) the Assignee thereunder shall be deemed automatically to have become a party hereto and, to the extent that rights -64 and obligations hereunder have been assigned to such Assignee by the assignor Lender, shall have the rights and obligations of a Lender hereunder and under each other Loan Document, and (ii) the assignor Lender, to the extent that rights and obligations hereunder have been assigned by it to the Assignee, shall be released from its future obligations hereunder and under each other Loan Document.
(d) Subject to Section 12.08(e), any Lender may at any time sell to one or more financial institutions or other Persons (each an “Assignee”of such Persons being herein called a "Participant") all, or participating interests in any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the its Commitment or other rights and obligations interests of such Lender hereunder; provided, however, that that
(i) no written consent of Holdings participation contemplated in this Section 12.08(d) shall be required during the existence of a Default relieve such Lender from its Commitment or an Event of Default; its other obligations hereunder or under any other Loan Document;
(ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline such Lender shall be required in connection with any assignment remain solely responsible for the performance of its Commitment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; other obligations;
(iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the LoansCompany, the Commitment Agent, and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may Issuing Bank shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the each other Loan Documents, and Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender shall transfer to take or grant refrain from taking any participating interest action hereunder or under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent that such amendmentLender may agree with any Participant that such Lender will not, consent or waiver would require unanimous consent without such Participant's consent, take any action of the Lenders as type described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 Agreement12.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of the Administrative AgentAgent and, the L/C Issuer but only if there has not occurred and the Swingline Lenderis continuing an Event of Default or Potential Default, and in the case of an assignment of Revolving LoansMAC, Holdings (which in each case shall such consents not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings MAC or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Affiliate of such Lender or to another Lender or its Affiliate) (each an "Assignee") all or any part of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) and the other Obligations held by such Lender hereunder, in a minimum amount of $5 million (or (A) if such Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning a Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,0001 million; and (ivB) each if such partial assignment shall be of a ratable part of the LoansLender's Commitment is less than $5 million, the Commitment and the other interests, rights and obligations hereunder of such assigning Lenderone hundred percent (100%) thereof); and provided furtherprovided, however, that Holdings MAC, the Borrowers, the Issuing Lender and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrowers, the Issuing Lender and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance Agreement and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrowers that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising Commitments resulting therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c2) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance Agreement and payment of the processing fee (and provided that which notice shall also be sent by the L/C IssuerAdministrative Agent to each Lender), the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a))Borrowers shall, Holdings shall if requested by the Assignee, execute and deliver to the Administrative Agent any Agent, a new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if 's Applicable Percentage of the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Commitments.
(d3) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrowers (a “"Participant”") participating interests in all or any Loans, the Commitment portion of that Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of that Lender its Commitments and the Loans owing to it) (the “"originating Lender”) hereunder and under the other Loan Documents"); provided, however, that (i) 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, and (iii) Holdingsthe Borrowers, the L/C Issuer, the Swingline Issuing Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.012.5, 4.03 2.6 and 11.05 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and 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, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(e4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any 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 owing to secure obligations it) to any Federal Reserve Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Lender, provided that any payment in respect of such Lender, including any pledge assigned interests made by the Borrowers to or assignment for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrowers' obligations hereunder in respect to secure obligations such assigned interests to a Federal Reserve Bank; provided that no the extent of such pledge or payment. No such assignment shall release such the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Macerich Co)
Assignments, Participations, etc. Any Lender may at any time assign and delegate to one or more Lender Affiliates all or any portion of the Loans, the Credit Commitments and the other rights and obligations of such Lender hereunder; provided that (ai) Any all such assignments shall be in a minimum amount of $1,000,000 if made to another Lender party hereto or $5,000,000 if made to any other Lender Affiliate; (ii) no Lender shall have Credit Commitments, immediately following an assignment, of an aggregate amount of less than $1,000,000 unless such Lender shall have assigned all of its Loans, Credit Commitments, rights and obligations hereunder, and no Lender Affiliate, other than a Lender party hereto, shall have Credit Commitments immediately following an assignment of an aggregate amount of less than $5,000,000, unless such Lender Affiliate shall have assigned all of its Loans, Credit Commitments, rights and obligation hereunder; provided, further, that Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to such Lender Affiliate until (A) written notice of such assignment, together with payment instructions, addresses and related information with respect to such Lender Affiliate, shall have been given to Borrowers and the Administrative Agent by such Lender and such Lender Affiliate; (B) such Lender and such Lender Affiliate shall have delivered to Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment and Acceptance") together with any Note or Notes subject to such Assignment and (C) such Lender Affiliate has paid to the Administrative Agent a processing fee in the amount of $3,000. Upon the occurrence and continuance of an Event of Default, any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent shall be required in connection with any assignment and delegation by a Lender to its Lender Affiliate) (each an “"Assignee”") all, all or any ratable part of all, portion of the Loans, the Commitment, the L/C Obligations Credit Commitments and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, assignment together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Borrowers and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to Borrowers and the Administrative Agent an Assignment and Acceptance together with any Note or Notes subject to such Assignment and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,000. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a the assignor Lender under the Loan Documents, Documents and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance Acceptance, which notice shall also be sent by the Administrative Agent to each Lender, and payment of the processing fee (and provided that the L/C Issuerfee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrowers shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Credit Commitment and, if the assignor Lender has retained a portion of its Loans and its Credit Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Credit Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any).
(d) 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 Credit Commitments arising therefrom. The Credit Commitment allocated to each Assignee shall reduce such Credit Commitment of the assigning Lender pro tanto. Any Lender may at any time sell to one or more commercial banks lenders or other Persons not Affiliates affiliates of Holdings Borrowers (a “"Participant”") participating interests in any Loans, the Credit Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrowers and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set 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.
. Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" by Borrowers and provided to it by Borrowers or any Subsidiary of Borrowers, or by the Administrative Agent on such Company's or such Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (ei) was or becomes generally available to the public other than as a result of a disclosure by any Lender or (ii) was or becomes available on a non-confidential basis from a source other than Borrowers, provided that such source is not bound by a confidentiality agreement with Borrowers known to such Lender; provided further, however, that the Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of the Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning Borrowers or their Subsidiaries which has been delivered to Administrative Agent or the Lenders pursuant to this Agreement or which has been delivered to the Administrative Agent or the Lenders by Borrowers in connection with the Lenders' credit evaluation of Borrowers prior to entering into this Agreement; provided that, unless otherwise agreed by Borrowers, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any portion of the Loans or Notes held by it to any Federal Reserve Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Lender, provided that any payment in respect of such assigned Loans or Notes made by Borrowers to or for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy Borrowers' obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder. . In addition to any rights and remedies of the Lenders provided by law, if an Event of Default exists, each Lender is, subject to Section 8.2, authorized at any time and from time to time, without prior notice to Borrowers, any such notice being waived by Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing to, such Lender to or for the credit or the account of Borrowers against any and all Obligations owing to such Lender, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Each Lender agrees promptly to secure obligations notify Borrowers and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such set-off and application. The rights of each Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Notwithstanding any provision in under this Section 11.08 10.9 are in addition to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargoother rights and remedies (including other rights of set-off) which the Lender may have.
Appears in 1 contract
Sources: Term Credit Agreement (United Artists Theatre Circuit Inc /Md/)
Assignments, Participations, etc. (a) Any The Lender may, with the written consent of the Administrative Agent, Borrower (at all times other than during the L/C Issuer and the Swingline Lender, and in the case existence of an assignment Event of Revolving LoansDefault), Holdings (which in each case consent shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more other Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the LoansCredit Extensions, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such the Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent . The Borrower may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Eligible Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Eligible Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent Borrower by such the assigning Lender and the Assignee; Eligible Assignee and (Cii) the assignor assigning Lender or and Eligible Assignee shall have paid delivered to the Administrative Agent Borrower a processing fee in copy of the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent acceptance agreement relating to such assignment assignment, which agreement shall be usual and customary in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (form and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssubstance.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any LoansCredit Extensions, the Commitment of that Lender and the other interests of that the Lender (the “originating Lender”) hereunder and under the other Loan Credit Documents; provided, however, that (i) 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, and (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent Borrower 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 Credit Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 3.1 and 11.05 9.5 to the extent the Lender would be so entitled as though it were also a Lender hereunder, and 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. All participations shall be pro rata among such Lender’s Commitment. Any agreement or instrument pursuant to which the Lender sells such a participation shall provide that the Lender shall retain the sole right to enforce the Credit Documents and to approve any amendment, modification or waiver of any provision of the Credit Documents; provided that such agreement or instrument may provide that the Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver of any of the following that would: (i) increase the Commitment, (ii) reduce the principal amount of any reimbursement obligation with respect to an LC Disbursement, or reduce the rate of any interest, or reduce any fees, payable under the Credit Documents, (iii) postpone any date for the payment of any reimbursement obligation with respect to an LC Disbursement, any interest or any fees payable under the Credit Documents, or reduce the amount of, waive or excuse any such payment, or postpone the stated termination or expiration of the Commitment, (iv) change any of the provisions of this Section, (v) release Collateral from the Liens of the Credit Documents (except as otherwise expressly provided), (vi) increase the advance rates or change the defined term “Borrowing Base”, or any other change that would increase the amount of available credit under the Credit Documents, or (vii) change Section 2.10.
(ec) Notwithstanding any other provision in this Agreement, any the Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any LC Obligation held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of the Administrative AgentAgent and, but only so long as there does not exist an Event of Default, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees financial institutions (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunderhereunder in a minimum amount of $5,000.000.00; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance Agreement; and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500.00. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeAgreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Percentage Share arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Holdings (each a “Participant”) participating interests in any Loans, the Commitment funding commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent 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, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $5,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such 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 heretoFederal Reserve Lender.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower, the Agent, the L/C Issuer Swingline Lender and the Swingline each Issuing Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Borrower shall be required either in connection with any assignment and delegation by a Lender to an Eligible Assignee that is a Lender Affiliate of such Lender or at any time that an Event of Default shall exist) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Commitment and Term Commitment and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that which is not a Lender hereunder shall be in a minimum amount equal to the lesser of $5,000,000 or greater than $1,000,000the full amount of the assignor Lender's Commitment; and (iv) each such partial assignment shall be of a ratable part of provided, still further, that the LoansBorrower, the Commitment Issuing Lenders, the Swingline Lender and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit L ("Assignment and Acceptance"); and (iii) in the case of any assignment to an Assignee which is not already a Lender, the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood 3,500; and provided, still further, that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargohereunder must include an equal percentage of the assignor Lender's Revolving Commitment, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Term Commitment, Revolving Loans, Letter of Credit Obligations and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Term Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received requirements of paragraph (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08a) an executed Assignment and Acceptance and payment of the above-referenced processing feeabove are satisfied, (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) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 . Anything herein to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitmentcontrary notwithstanding, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the any Lender assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion all of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender Commitments and the other interests of that Lender (the “originating Lender”) rights and obligations hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent to an Assignee 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to have the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 Agreementall indemnities hereunder following such assignment.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender Bank may, with the written consent of (i) the Administrative Agent, Company at all times other than during the L/C Issuer and the Swingline Lender, and in the case existence of an assignment Event of Revolving Loans, Holdings Default (which in each case consent shall not be unreasonably withheld) and (ii) the Agent (which consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an affiliate of such Bank) which have not been a party to any Material litigation with the Agent or the Company (each an “Assignee”"ASSIGNEE") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in an initial minimum amount of $5,000,000 and in increments of $5,000,000 in excess thereof; providedPROVIDED, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentHOWEVER, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (A1) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (C2) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of EXHIBIT "G" ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (3) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to 5,000. All costs and expenses incurred by an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to assigning Bank in such assignment in accordance with this Section 11.08(a). In connection with any assignment shall be borne by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssuch Bank.
(b2) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto to and received any other consents required under this Section 11.08the consent of the Company with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c3) Within five (5) Business Banking Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(aSECTION 11.6(a)), Holdings the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Bank PRO TANTO.
(d4) Any Lender may Bank may, with the written consent of the Agent (which consent shall not be unreasonably withheld), at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (iA) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (iiB) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iiiC) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (ivD) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso FIRST PROVISO to Section 11.01SECTION 11.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01SECTIONS 4.5, 4.03 4.7 and 11.05 11.12 as though it were also a Lender Bank hereunder, and except thatand, 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 Bank under this Agreement.
(e5) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" or "secret" by the Company and provided to it by the Company or any Subsidiary, or by the Agent on such Company's or Subsidiary's behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Bank; PROVIDED, HOWEVER, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank's independent auditors and other professional advisors; (G) to any Participant or Assignee, actual or potential, provided that such Person agrees in writing to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Bank.
(6) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable Law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
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Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees assignees (each an “Assignee”) (provided that no written consent of the the Agent shall be required in connection with any assignment and delegation by a Lender to an assignee that is an affiliate of such Lender) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Loan Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit C (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment and (iii) except in the case of an assignment required hereunder by the Borrower, the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent that the Agent consents to such assignment in accordance with respect thereto and received any other consents required under this Section 11.08section 8.3(a)) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent Agent consents to such assignment in accordance with Section 11.08(asection 8.3(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, a new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Revolving Loan Commitment and, if the assignor Lender has retained a portion of its Loans and its Revolving Loan Commitment, a replacement Notes as requested by Note in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon the Agent’s receipt of the executed Assignment and Assumption and the Agent’s consent thereto, if any)and each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolving Loan Commitments arising therefrom. The Revolving Loan Commitment allocated to each Assignee shall reduce such Revolving Loan Commitment of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons persons not Affiliates affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, Loans and the Revolving Loan Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01subsections (a), (b), (c) and (e) of section 8.9. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 sections 2.3(c) and 11.05 8.6 as though it were also a Lender hereunder, provided that the Borrower shall not be responsible for any amounts payable under the foregoing sections that the Borrower would not have otherwise been required to pay if such participation had not occurred, and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding In the event that (i) any provision Lender shall claim compensation under the last sentence of section 2.3(c) hereof which is not claimed by all of the Lenders, or (ii) any Lender fails to make available its pro rata share of any Loan, then, in addition to any other rights the Borrower may have, the Borrower may, upon fifteen (15) days prior notice to such Lender and the Agent, cause such Lender to assign, and such Lender shall immediately assign, to one or more Lenders (each a “Selected Assignee”) that desires to become a Lender under this Section 11.08 Agreement selected by the Borrower and consented to by the Agent (whose consent shall not be unreasonably withheld), unless the Agent is being removed pursuant to this subsection (f) in which case such consent would not be required, all of its rights and obligations under this Agreement and the Note held by such Lender, and each such Selected Assignee shall assume such rights and obligations, pursuant to an Assignment and Acceptance in substantially the form of Exhibit C attached hereto executed by each such Selected Assignee and such assigning Lender. Upon execution and delivery of such instrument, payment of the processing fee set forth in section 8.3(a) and payment by such Selected Assignee or Selected Assignees to the contraryassigning Lender of an aggregate amount equal to the outstanding principal balance on any Note payable to such assigning Lender, no registration together with accrued interest thereon, and all other amounts owing to such assigning Lender hereunder or processing fee under any of the other Loan Documents, each such Selected Assignee shall be payable in a Lender hereunder and under each of the other Loan Documents and shall have the rights and obligations of a Lender. In connection with assignments to Selected Assignees, each of the assigning Lender, each Selected Assignee, the Agent and the Borrower shall comply with the provisions of sections (a), (b) and (c) as if the term “Assignee” set forth therein referred to the Selected Assignee.
(g) In connection with such assignments and sales of participating interests (and thereafter), a Lender may disclose any assignment by W▇▇▇▇ Fargofinancial information such Lender may have concerning the Borrower to any such Assignee or potential Assignee, or Participant or potential Participant, subject to the confidentiality provisions contained herein.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Borrowers and the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Borrowers shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is a Bank Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender Bank hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be in a minimum amount equal to or greater than $1,000,000; 5,000,000 and (iv) each such partial assignment shall be of a ratable part of provided, further, that the LoansBorrowers, the Commitment Issuing Bank, the Swingline Bank and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (Cii) the assignor Lender or such Bank and its Assignee shall have delivered to the Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit J ("Assignment and Acceptance"); and (iii) in the case of any assignment to an Assignee which is not already a Bank, the assignor bank or Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood 3,000; and provided, still further, that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with hereunder must include an assignment transaction involving an assignment equal percentage of all of its the assignor Bank's Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Committed Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent has received requirements of paragraph (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08a) an executed Assignment and Acceptance and payment of the above-referenced processing feeabove are satisfied, (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 Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Us Industries Inc)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Company at all times other than during the existence of an Event of Default and the Syndication Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company or the Syndication Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “Assignee”"ASSIGNEE") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent Agents may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent Agents by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Company and the Syndication Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") and (iii) the assignor Lender Bank or Assignee shall have has paid to the Syndication Agent and the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to 1,500 each except where the Assignee is an assignment to more than one Eligible Assignee within affiliate of the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansassigning Bank.
(b) From and after the date that the Administrative Syndication Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Syndication Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(asubsection 10.8(a)), Holdings the Company shall execute and deliver to the Administrative Agent any Syndication Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank by the amount the Commitment assigned.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “Participant”"PARTICIPANT") (other than investment companies) participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “originating Lender”"Originating Bank") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent Agents shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender Bank hereunder, but shall not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" or "secret" by the Company and provided to it by the Company, or by an Agent on the Company's behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Bank; PROVIDED, HOWEVER, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which any Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank's independent auditors and other professional advisors; (G) to any Affiliate of such Bank, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss. 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(fg) Notwithstanding Any Bank may transfer and carry all or a portion of its Commitment and the Loans at the time held by it at, to or for the account of any provision in domestic or foreign branch office of such Bank, and such transfer shall not be deemed an assignment or participation pursuant to this Section 11.08 10.8; provided, however, that such Bank shall not be entitled to receive any amount payable pursuant to Section 3.3 hereof to the contraryextent that such amount would not have been payable but for the transfer referred to above; provided, no registration or processing fee further, that such Bank shall be payable have delivered to the Syndication Agent revised information with respect to it as set forth in connection with any assignment by W▇▇▇▇ FargoSection 10.2.
Appears in 1 contract
Sources: Credit Agreement (Pilgrim America Prime Rate Trust)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be unreasonably withheld)) at all times other than during the existence of an Event of Default, the Agent and the Issuing Bank, if applicable, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company, the Agent or the Issuing Bank, if applicable, shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderIssuing Bank, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent or the Issuing Bank shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such assigning Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations -------- Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of the lesser of (i) $5,000,000 or (ii) the full amount of the Loans, the Commitments and the other rights and obligations of such Bank; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may -------- ------- continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E --------- ("Assignment and Acceptance"), requiring, among other things, that any ------------------------- Assignee agree to be bound by the UK/US Intercreditor Agreement and the Securitization Intercreditor Agreement and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee3,500, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agentand, Holdingsprovided, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with further any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may shall be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment subject to the restrictions of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansWarrant Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-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 Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Borrower (at all times other than during the existence of an Event of Default or a Default) and the Administrative Agent, which consent of the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case Borrower shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Borrower or the Administrative Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of $2,500,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E(“Assignment and Acceptance”) and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent as set forth in clause (a) above with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish .
(c) Immediately upon each Assignee’s making its rights processing fee payment under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment . Upon request of the processing fee Borrower (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings at its expense) shall execute and deliver a Note to the Administrative Agent any new Note requested assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale of such Assignee evidencing Lender of a participation in such Assignee’s assigned Loans rights and Commitment and, if the assignor Lender has retained a portion obligations in accordance with subsection (e) of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)this Section.
(d) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Payment Office within the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and the other rights and obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative 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 of the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(e) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates thereof or Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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, and (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent 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. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, and (iv) modification or waiver of any provision of this Agreement; providedthat no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.1. In Subject to subsection (f) of this Section, in the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 and 11.05 3.3and 10.5 as though it were also a Lender hereunder, and 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.
(ef) A Participant shall not be entitled to receive any greater payment under Section 3.1 or 3.3 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.1 unless the Borrower is notified of the participation sold to such Participant and such Participant complies with Section 9.10 as though it were a Lender.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Pma Capital Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower (other than during the existence of a Default or Event of Default in which event the Borrower’s consent shall not be required) and the Agent, the L/C Issuer and the Swingline Lenderwhich consent, and in the case of an assignment of Revolving Loans, Holdings (which in each case case, shall not be unreasonably withheldwithheld (which consent of the Borrower and the Agent shall not be required if the Eligible Assignee is an Affiliate of such Lender or is another Lender), provided that such assignment shall not result in increased costs to the Borrower pursuant to Section 2.11, at any time assign and delegate to one or more Eligible Assignees Lender (each an “Assignee”) all, or any ratable part of all, of the LoansRevolving Loan Notes, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum amount of not less than CAD 5,000,000 and, after giving effect to such assignment, the assigning Lender’s or selling Lender’s Pro Rata Share of the Revolving Loan Notes and L/C Obligations shall equal an amount that it not less than CAD 10,000,000, in each case, unless otherwise agreed in writing by the Borrower and the Agent; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit E (“Assignment and Acceptance”) together with any Revolving Loan Note subject to such assignment; and (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansCAD 4,000.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Transaction Documents other than its obligations to maintain confidential information set forth in 10.11(e).
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrower shall execute and deliver to the Agent, a new Revolving Loan Note evidencing such Assignee’s assigned Pro Rata Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Revolving Loan Note in the principal amount of the Pro Rata Share of the Revolving Loans retained by the assignor Lender (such Revolving Loan Note to be in exchange for, but not in payment of, the Revolving Loan Note held by such Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date Pro Rata Share of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Revolving Loans.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Holdings the Borrower (a “Participant”) participating interests in any the Revolving Loans, the Commitment of that Lender L/C Obligations and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Transaction Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, Transaction Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender; and provided further that, and it is hereby agreed that, the Borrower shall not be obligated to make any greater payment or otherwise incur any greater cost or liability under Section 2.09, 2.10 or 2.11 than had no such sale of a participating interest occurred.
(e) Each Lender agrees to maintain the confidentiality of all information identified as “confidential” by the Borrower and provided to it by the Borrower, or by the Agent on the Borrower’s behalf, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or one of its Affiliates not in violation of any confidentiality agreement; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender’s independent auditors and other professional advisors. If the Agent or any Lender discloses any such confidential information pursuant to the provisions of the Lenders as described in the first proviso to Section 11.01. In the case of any such participationimmediately proceeding proviso, the Agent or such Lender shall seek to obtain assurance that confidential treatment will be accorded to such confidential information; provided, however, that neither the Agent nor any Lender shall have any liability for the failure to obtain such confidential treatment. Notwithstanding the foregoing, the Borrower authorizes each Lender to disclose to any Participant shall be entitled or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender’s possession concerning the Borrower or a Subsidiary Guarantor which has been delivered to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under Agent or the Lenders pursuant to this Agreement are due and unpaid, or shall have which has 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 delivered to the same extent as if Agent or the amount Lenders by the Borrower or a Subsidiary Guarantor in connection with the Lenders’ credit evaluation of its participating interest were owing directly the Borrower and the Subsidiary Guarantors prior to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in entering into this Agreement, 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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee participant or assignee for such Lender as (or prospective participant or assignee) agrees in writing to be bound by a party heretoconfidentiality agreement similar to the provisions of this Section 10.11(e).
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Transaction Document to the contrary, no registration any Lender may assign all or processing fee shall be payable in connection with any assignment portion of its Pro Rata Share of the Revolving Loan Notes and the L/C Obligations held by W▇▇▇▇ Fargoit to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Borrower and the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case each of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender or to another Lender, and no consent of the Borrower shall be required so long as a Default or Event of Default has occurred and is continuing) all or any portion, of its Commitments or Credit Extensions and the other rights and obligations of such Lender hereunder, in a minimum amount of the lesser of $5,000,000 and the full remaining amount of such Lender's Commitments or Credit Extensions (except that no such minimum shall be applicable to an assignment to a Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning a Lender, ); provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Eligible Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Eligible Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Eligible Assignee; (Cii) such Lender and its Eligible Assignee shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Eligible 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, Documents and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided. Upon the request of the assignee, however, that the assignor Lender Borrower shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 issue Notes to the extent Eligible Assignee. Upon the request of the assignor, if applicable, the Borrower shall issue a reduced Note to such rights relate to the time prior to the effective date of assignor in exchange and replacement for its then existing Note.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitments of the assigning Lender pro tantodollar for dollar.
(cd) Within five The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for the purpose of this Section, to maintain a register (5the "Register") Business Days after Holding’s receipt on which the Administrative Agent will record each Lender's Commitment, the Loans made by each Lender and the Notes evidencing such Loans, and each repayment in respect of notice the principal amount of the Loans of each Lender and annexed to which the Administrative Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent pursuant to this Section. Failure to make any recordation, or any error in such recordation, shall not affect the Borrower's or any other Obligor's Obligations in respect of such Loans or Notes. The entries in the Register shall be conclusive (provided that any failure to make any recordation or any error in such recordation shall be corrected by the Administrative Agent that it has received (andupon notice or discovery thereof), if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C IssuerBorrower, the Swingline Lender Administrative Agent and Holdings the Lenders shall treat each consent Person in whose name a Loan and related Note is registered as the owner thereof for all purposes of this Agreement, notwithstanding notice or any provision herein to the contrary. A Lender's Commitment and the Loans made pursuant thereto and the Notes evidencing such Loans may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer in accordance with Section 11.08(a)), Holdings the Register. Any assignment or transfer of a Lender's Commitment or the Loans or the Notes evidencing such Loans made pursuant thereto shall execute and deliver be registered in the Register only upon delivery to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor of a Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested Assignment Agreement duly executed by the assignor Lender evidencing thereof. No assignment or transfer of a Lender's Commitment or the Loans and Commitment retained made pursuant thereto or the Notes evidencing such Loans shall be effective unless such assignment or transfer shall have been recorded in the Register by the assignor Lender (such Note to be Administrative Agent as provided in exchange for, but not in payment of, the Note held by such Lender, if any)this Section.
(de) Any Lender may at any time time, without the consent of any Person, sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating "Originating Lender”") hereunder and under the other Loan Documents; provided, however, that provided that
(i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender’s 's rights and obligations under this Agreement and the other any Loan Documents, Document and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous the consent of the Lenders Originating Lender as an affected Lender as described in the first proviso to Section 11.0111.1(a). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3 and 11.05 11.5 as though it were also a Lender hereunder, but shall not be entitled to any greater amount than would be payable to the original Lender if no participation had been made and 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.
(e) Notwithstanding any other provision . Each Lender shall, as agent of the Borrower solely for the purpose of this Section, record in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.book entries
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Financial Inc /De/)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Issuing Bank, the Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Swingline LenderCompany, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer Issuing Bank, the Swing Line Lender or the Swingline Lender Company shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all of, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lenderany part of, the Lender seeking to assign its interests hereunder shall consult with Holdings Loans, the Commitments, the L/C Obligations and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s other rights and obligations with respect to its Commitmentof such Lender hereunder, in a minimum aggregate Dollar Equivalent of $5,000,000 (or, if less, the entire amount of such Lender's Loans and Commitments, and such Loans and Commitments may consist of the Revolving Loan Commitments, the Term Loan Commitments and the Sterling Acquisition Loan Commitments as determined by the assigning Lender) calculated by aggregating the Commitments, Loans and L/C Obligations, any such assignment to Obligations held by an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000which are Affiliates; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherprovided, however, that Holdings each Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings each Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to each Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E attached hereto ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
126 136 (b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Documents (other than with respect to any indemnification pursuant to Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto12.05).
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(a12.08(a)), Holdings the relevant Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment Commitments and, if the assignor Lender has retained a portion of its Loans and its CommitmentCommitments, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon receipt by the Administrative Agent of the processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitments allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings a Borrower (a “"Participant”") participating interests in any Loans, the Commitment Commitments of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdingseach Borrower, the L/C IssuerIssuing Bank, the Swingline Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in required pursuant to the first proviso to Section 11.0112.
01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by a Borrower hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
. 127 137 (e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Notes held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of the Administrative AgentAgent and, but only if there has not occurred and is continuing an Event of Default or Potential Default, the L/C Issuer and the Swingline LenderCompany, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall such consents not to be unreasonably withheld), any Lender may at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an “Assignee”) all or within the same “family any part of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings ’s Commitment and Revolving Loans and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s other rights and obligations with respect to its Commitmentof such Lender hereunder, Loans and L/C Obligations, any in a minimum amount of $5,000,000.00 (or if such assignment to an Eligible Assignee that Lender’s Revolving Credit Commitment is not a Lender hereunder shall be equal to or greater less than $1,000,0005,000,000.00, one hundred percent (100%) thereof); and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherprovided, however, that Holdings the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance Agreement and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.00.
(b2) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents.
(3) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement, which notice shall also be sent by the Administrative Agent to each Lender, and payment of the processing fee, the Company shall, if requested by the Assignee, execute and deliver to the Administrative Agent, new Notes evidencing such Assignee’s assigned Revolving Loans and Revolving Loan funding commitment. Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance Agreement, this Credit Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans Percentage Shares resulting therefrom and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, Administrative Agent shall deliver to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to Company a revised Commitment Schedule reflecting such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantoadjustment.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d4) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “Participant”) participating interests in any Revolving Loans, the Commitment funding commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Credit Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01Paragraphs 2(e), 4.03 2(f) and 11.05 2(g) (and subject to the burdens of Paragraphs 2(h) and 11(h) above) as though it were also a Lender hereunderthereunder, and except that, if amounts outstanding under this Credit 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 Credit Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Credit Agreement, and Paragraph 11(j) of this Credit Agreement shall apply to such Participant as if it were a Lender party hereto.
(e5) Notwithstanding any other provision contained in this AgreementCredit Agreement or any other Loan Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement the Revolving Loans or Notes held by it to secure obligations any Federal Reserve Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Lender, provided that any payment in respect of such Lender, including any pledge assigned Revolving Loans or assignment Notes made by the Company to secure or for the account of the assigning and/or pledging Lender in accordance with the terms of this Credit Agreement shall satisfy the Company’s obligations hereunder in respect to a Federal Reserve Bank; provided that no such pledge assigned Revolving Loans or Notes to the extent of such payment. No such assignment shall release such the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with (A) the written consent of the Administrative AgentBorrower, the L/C Issuer and the Swingline Lenderwhich consent shall not be unreasonably withheld (provided that such consent shall not be required (i) at any time that an Event of Default exists, and (ii) in the case of connection with an assignment of Revolving Loansa Term Loan to a Related Fund or (iii) in connection with an assignment by Antares of the Term Loan, Holdings or any portion thereof, prior to completion of the primary syndication), (B) the written consent of Agent, which in each case shall not be unreasonably withheld), and (C) with respect to any assignment of any Revolving Loan Commitment, the written consent of all Issuing Lenders, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of provided that the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings the Agent or Borrower shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lenderany part of, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $5,000,000 (or such lesser amount to which Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; and provided furtherprovided, however, that Holdings the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form and substance reasonably satisfactory to Agent, such Lender and its Assignee (an "Assignment and Acceptance"); and
(Ciii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such provided no processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any be required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only paid in connection with an assignment transaction involving by a Lender to an assignment Eligible Assignee that is an Affiliate of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssuch Lender.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, ; and
(ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 .
(c) Subject to the extent such rights relate provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the time prior to the effective date Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitment of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 Agreementextent.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the L/C Issuer Issuing Lender and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Swing Line Lender (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an “"Assignee”") all, all or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ax) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Culligan and the Administrative Agent by such Lender and the Assignee; (Cy) such Lender and the assignor Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) 3,000; and (Dii) the Administrative Agent, Holdingsconcurrently with such assignment, the L/C Issuer and assignor Lender shall assign to the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all Assignee a proportionate share of its Commitment loans, commitment and Loans, other rights and obligations under the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansLong-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assigned to assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings Culligan (a “"Participant”") participating interests in any LoansLoan, the Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdingsthe Borrowers, the L/C IssuerIssuing Lender, the Swingline Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0112.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3, 4.4, 4.6 and 11.05 12.5 as though it were also a Lender hereunder, and 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 the 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.
(ed) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Short Term Credit Agreement (Culligan Water Technologies Inc)
Assignments, Participations, etc. (a) Any Lender may, with the may upon written consent of the Administrative Agent, the L/C Issuer Issuing Lender and the Swingline LenderCompany, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (provided at any time that an Event of Default has occurred and is continuing, no approval from the Company shall be required), at any time time, assign and delegate to one or more Eligible Assignees (provided that no written consent of the Administrative Agent or the Issuing Lender shall be required in connection with any assignment and delegation by the Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any ratable part of allall in a minimum commitment amount at least equal to $2,500,000, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit D (“Assignment and Acceptance”) together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section Subsection 11.08(a)), Holdings ) the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender, if anywhich shall be cancelled upon receipt of the new or replacement Notes). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings the Company or any Guarantor (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, the originating Lender shall remain a Lender for all purposes hereof and the other Loan Documents to which such originating Lender is a party, and the Participant may not become a Lender for purposes hereof or for any other of the Loan Documents, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdingsthe Company, the L/C Issuer, the Swingline Lender Guarantors and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01Lenders. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant’s rights against the granting Lender in respect of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Lender), and all amounts payable by the Company or any Guarantor hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the Company or any Guarantor and provided to it by the Company or any Guarantor, or by the Administrative Agent on Company’s or any Guarantor’s behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by any Lender or the Administrative Agent or any Guarantor, or (ii) was or becomes available on a non-confidential basis from a source other than the Company or any Guarantor, provided that such source is not bound by a confidentiality agreement with the Company or any Guarantor known to the Lender; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender’s independent auditors and other professional advisors; (G) to any Affiliate of such Lender, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Lenders hereunder, and (H) as to any Lender, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company or any Guarantor is party or is deemed party with such Lender.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Notes held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Lender may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be unreasonably withheld)) at all times other than during the existence of an Event of Default, the Agent and the Issuing Bank, if applicable, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company, the Agent or the Issuing Bank, if applicable, shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $10,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section subsection 11.08(a)), Holdings the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto. The Agent shall not deliver any new Notes executed by the Company unless the Agent shall have received the old Notes to be replaced or customary indemnification in favor of the Agent and the Company with respect to lost or destroyed notes. Such old Notes shall be promptly returned to the Company.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.0111.
01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender Bank hereunder. Notwithstanding the immediately preceding sentence, and except that, if all amounts outstanding payable by the Company 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 other Loan Document 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 determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementno such participation had been sold.
(e) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute manner permitted under applicable law. Notwithstanding any such pledgee or assignee for pledge, such Lender Bank shall remain liable to the Company and the Issuing Bank as a party heretoif such pledge had not been made.
(f) Notwithstanding any provision anything in this Section 11.08 to 11.09 neither BofA nor the contraryArranger will begin contacting prospective Banks about a potential assignment of their rights hereunder until the earlier of (i) April 20, no registration 1997 or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo(ii) the Company's public disclosure of its contemplated recapitalization.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Briggs & Stratton Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (Borrower which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Agent or the Administrative Agent, the L/C Issuer or the Swingline Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is to another Lender; provided, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitmentfurther, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder no Borrower consent shall be equal to required if there is a continuing Default or greater than $1,000,000; and an Event of Default) (iveach an "Assignee") each such partial assignment shall be of a all, or any ratable part of all, of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning LenderLender hereunder, in a minimum amount of $5,000,000; and provided furtherprovided, however, that Holdings the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent proposed assignee is an approved Eligible Assignee (to the extent approval is necessary), that it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer85 fee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.1, and (v) each such participation shall be in an aggregate principal amount of at least $3,000,000 (or such lesser amount as shall equal the portion of the originating Lender's Loans for which participating interests have not been sold hereunder). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender hereunder, and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 86 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Amazon Com Inc)
Assignments, Participations, etc. [(a) Any Lender maySubject to first obtaining any prior approvals set forth in Section 11.11[(b) and otherwise complying with this Section 11.11, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time Financing Party may assign and delegate to one or NEWYORK 8115155 (2K) 98 more Eligible Assignees (each an “Assignee”) all, all or any ratable part of allany Loan, of the Loans, the Commitment, the L/C Obligations Specified Letter of Credit, TALC Percentage or TALC Participating Amount and the other rights and obligations of such Lender hereunderor Issuing Bank hereunder and under the other Financing Documents; provided, however, that (iA) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any each such assignment and delegation by a Lender of Construction Loans, Construction Notes, and Construction Loan Commitments shall only be assigned contemporaneously with a corresponding portion of Term Loan Commitments; (B) in the case of an assignment of any part of a Loan or Commitment to any Eligible Assignee, such assignment shall not be for an amount less than (x) $1,000,000 in respect of any Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking a Financing Party prior to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect giving effect to its Commitment, Loans and L/C Obligations, any such assignment to an or (y) $5,000,000 in respect of any Eligible Assignee that is not a Lender hereunder shall be equal Financing Party prior to giving effect to such assignment, (or greater than $1,000,000a higher integral multiple of 1,000,000 in excess thereof) in each instance; and (ivC) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such the assigning Lender or Issuing Bank in connection with the interest so assigned to an Assignee until (A1) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Eligible Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such assigning Lender or Issuing Bank and the Eligible Assignee; , (C2) the assignor Lender assigning Lender, Issuing Bank or Eligible Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 and (it being understood that 3) the assigning Lender or Issuing Bank shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit 13 hereto (an “Assignment and Acceptance”) with respect to an such assignment to more than one from the assigning Lender or Issuing Bank; provided, further, that, if the Eligible Assignee within is an Affiliated Lender, then (A) such Affiliated Lender (whether as a direct purchaser of the same “family Loans or as the ultimate purchaser of funds” the Loans through a broker or by more than one other intermediary) shall ensure that its identity as an Affiliate of the Borrower is known to the assigning Lender within and the same “family Administrative Agent and (B) at the time of funds” such assignment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. [(b) Prior to making any assignment of Loan, Commitment, Specified Letter of Credit, TALC Percentage or TALC Participating Amount hereunder, the assigning Lender or Issuing Bank (or the Borrower if the Borrower is proceeding in accordance with Section 3.26) shall obtain the written consent of (i) the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), (ii) except upon the occurrence and continuance of a single Eligible AssigneeDefault or Event of Default, only one the Borrower (such processing fee is payable for the series of simultaneous assignmentsconsent not to be unreasonably withheld, conditioned or delayed) and (Diii) if constituting an assignment of a TALC Percentage or a TALC Participating Amount, the TALC Issuing Bank (which consent may be granted or withheld in the TALC Issuing Bank’s sole discretion); provided, that no written consent of the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each Agent or Borrower shall have provided any be required consent to such assignment in accordance with this Section 11.08(a). In connection with any such assignment by W▇▇▇▇ Fargoa Lender to (i) an Eligible Assignee that is an Affiliate of such Lender or (ii) to another Lender that is an Eligible Assignee. [(c) Subject to Section 10.10, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From from and after the date that the Administrative Agent notifies the assignor assigning Lender and the Borrower that the Administrative Agent it has received (and, if requiredwhere required in accordance with Section 11.11[(a), provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced above‑referenced processing fee, (i) the Eligible Assignee thereunder under such Assignment and Acceptance shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Financing Documents have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender NEWYORK 8115155 (2K) 99 hereunder and under the Loan other Financing Documents, (ii) and this Credit Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect effect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefromEligible Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Eligible Assignee to the extent of their respective interests and (iiiii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Financing Documents; provided, however, that (iany Lender that assigns all of its Commitments and Loans hereunder in accordance with Section 11.11[(a) shall continue to have the originating Lender’s obligations benefit of any indemnification provisions under this Credit Agreement (including Sections 3.10, 3.24, 11.1 and 11.2) and under the other Financing Documents (to the extent having arisen prior to such assignment), which shall remain unchanged, (iisurvive such assignment as to such assigning Lender. At the time of each assignment pursuant to Section 11.11[(a) the originating to a Person which is not already a Lender shall remain solely responsible for the performance of such obligations, (iii) Holdingshereunder, the L/C Issuer, relevant Eligible Assignee shall provide to the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender appropriate Internal Revenue Service Forms (and, if applicable, an Applicable Tax Certificate) described in connection with the originating Lender’s rights and obligations under this Agreement and the other Loan Documents, and (ivSection 3.24(b) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent forms would provide a complete exemption from or waiver would require unanimous consent reduction in United States withholding tax. To the extent that an assignment of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under a Lender’s Commitments and related outstanding Obligations pursuant to this Agreement to secure obligations Section 11.11 would, at the time of such Lenderassignment, including any pledge or assignment result in increased costs under Section 3.24 from those being charged by the respective assigning Lender prior to secure obligations such assignment, then the Borrower shall not be obligated to a Federal Reserve Bank; provided that no pay 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.
increased costs (f) Notwithstanding any provision although the Borrower, in this Section 11.08 accordance with and pursuant to the contraryother provisions of this Credit Agreement, no registration or processing fee shall be payable in connection with obligated to pay any assignment by W▇▇▇▇ Fargoother increased costs of the type described above resulting from changes after the date of the respective assignment).
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees Lender (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Notes and the other interests, rights and obligations hereunder of such assigning Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum amount of not less than $1,000,000 or such Lender's entire Proportionate Share, in each case, unless otherwise agreed in writing by the Borrowers and the Agent; and provided furtherprovided, however, that Holdings the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E five (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B5) a Business Days' prior written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrowers and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance"), for acceptance and for recording by the Agent in the Register, together with any Note subject to such assignment; (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 4,000, and (it being understood that with respect iv) the parties to an each such assignment shall have agreed to more than one Eligible Assignee within reimburse the same “family Agent for all fees, costs and expenses (including, without limitation, the reasonable fees and out-of-pocket expenses of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable counsel for the series of simultaneous assignmentsAgent) and (D) incurred by the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only Agent in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssuch assignment.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Transaction Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (but shall continue to be entitled to any Interest and other Obligations accrued for its account hereunder, not so assigned and not yet paid)).
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrowers shall execute and deliver to the Agent, a new Note evidencing such Assignee's assigned Proportionate Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Note in the principal amount of the Proportionate Share of the Loans retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the CommitmentsProportionate Share of the Loans.
(d) By executing and delivering an Assignment and Acceptance, Loans the assigning Lender thereunder and L/C Obligations arising therefrom, the Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (iiii) the such assignor Lender shallwarrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the outstanding balances of its Loan, without giving effect to the extent that rights and obligations hereunder and under the other Loan Documents assignments thereof which have been assigned by it pursuant to not become effective, are as set forth in such Assignment and Acceptance, relinquish its rights (ii) except as set forth in (i) above, such assignor Lender makes no representation or warranty and be released from assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or the financial condition of any Credit Party or the performance or observance by any Credit Party of any of its obligations under the Loan Documentsthis Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto; provided, however, (iii) such Assignee represents and warrants that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 it is legally authorized to the extent enter into such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each ; (iv) such Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent confirms that it has received (anda copy of this Agreement, if necessary, consented to) an executed together with copies of the most recent financial statements delivered pursuant to Section 6.07 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance Acceptance; (v) such Assignee will independently and payment of without reliance upon the processing fee (and provided that the L/C IssuerAgent, the Swingline such assignor Lender or any other Lender and Holdings each consent based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignment Assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such Assignee agrees that it will perform in accordance with Section 11.08(a)), Holdings shall execute and deliver to their terms all the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested obligations which by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note terms of this Agreement are required to be in exchange for, but not in payment of, the Note held performed by such it as a Lender, if any).
(de) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Holdings a Credit Party (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Loans and the other interests of that Lender (the “originating "Originating Lender”") hereunder and under the other Loan Transaction Documents; provided, however, that (i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Credit Parties and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender’s 's rights and obligations under this Agreement and the other Loan Transaction Documents, (iv) such Participant shall be entitled to the benefit of the provisions contained in Section 2.13 limited, as to each Participant, to the amount the selling Lender could claim and (ivv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender.
(f) Each Lender agrees to maintain the confidentiality of all information identified as "confidential" by the Borrowers and provided to it by the Borrowers, or by the Agent on the behalf of the Borrowers, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than a Credit Party or one of its affiliates; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, each Borrower authorizes each Lender to disclose to any Participant or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender's possession concerning a Borrower or the Guarantor which has been delivered to the Agent or the Lenders as described in the first proviso pursuant to Section 11.01. In the case of any such participation, the Participant shall be entitled this Agreement or which has been delivered to the benefit Agent or the Lenders by a Borrower or the Guarantor in connection with the Lenders' credit evaluation of Sections 4.01a Borrower and/or the Guarantor prior to entering into this Agreement, 4.03 and 11.05 as though it were also provided that such participant or assignee (or prospective participant or assignee) agrees in writing to be bound by a Lender hereunder, and 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 confidentiality agreement similar to the same extent as if the amount provisions of its participating interest were owing directly to it as a Lender under this AgreementSection 10.11(e).
(eg) Notwithstanding any other provision contained in this AgreementAgreement or any other Transaction Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement Proportionate Share of the Notes held by it to secure obligations any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; , provided that each such assignment shall be made in accordance with applicable law and no such pledge or assignment shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld)Bank, at any time may assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the CommitmentBorrowing Base Line, the Collateralized L/C Line, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $1,000,000.00; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Co-Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Co-Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Co-Borrowers and the Administrative Agent an Assignment and Acceptance (“Assignment and Acceptance”) in form attached hereto as Exhibit D, together with any Note or Notes subject to such assignment; and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2,500.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings The Co-Borrowers shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment Line Portion and, if the assignor Lender Bank has retained a portion of its Loans and its CommitmentLine Portion, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, if any)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 Line Portion arising therefrom. The Line Portion allocated to each Assignee shall reduce such Line Portion of the assigning Bank pro tanto. Upon such Assignment, Administrative Agent is authorized to revise Schedule 2.01 and Schedule 11.02 to reflect the adjusted status of the Banks.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Co-Borrowers (a “Participant”) participating interests in any Loans, the Commitment Line Portion of that Lender Bank and the other interests of that Lender Bank (the “originating LenderBank”) hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderBank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdingsthe Co-Borrowers, the L/C Issuer, the Swingline Lender Issuing Bank and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Co-Borrowers hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the Co-Borrowers and provided to it by the Co-Borrowers or any Subsidiary, or by the Administrative Agent on a Co-Borrower’s or Subsidiary’s behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Co-Borrowers, provided that such source is not bound by a confidentiality agreement with, or under obligation of confidentiality, the Co-Borrowers known to the Bank; provided, however, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank’s independent auditors and other professional advisors; (G) to any Affiliate of such Bank, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which a Co-Borrower is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 C.F.R. § 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(fg) Notwithstanding any provision in this Section 11.08 anything to the contrarycontrary contained herein, no registration or processing fee if at any time the Administrative Agent assigns all of its Line Portion and Loans pursuant to subsection (b) above, the Administrative Agent shall, (i) upon 30 days’ notice to the Co-Borrowers and the Banks, resign as Issuing Bank. In the event of any such resignation as Issuing Bank, the Co-Borrowers shall be payable entitled to appoint from among the Banks a successor Issuing Bank hereunder; provided, however, that no failure by the Co-Borrowers to appoint any such successor shall affect the resignation of the Administrative Agent as Issuing Bank. Administrative Agent shall retain all the rights and obligations of the Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Banks to make Loans or fund participations in connection with any assignment by W▇▇▇▇ FargoL/C Obligations pursuant to Section 3.03).
Appears in 1 contract
Sources: Credit Agreement (Avista Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative AgentCompany (at all times other than during the existence of an Event of Default), the L/C Issuer Administrative Agent and the Swingline Issuing Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (each PROVIDED that no written consent of the Company, the Administrative Agent or the Issuing Lender shall be required in connection with any assignment and delegation by a Lender to a Person described in CLAUSE (iii) of the definition of Eligible Assignee) (each, an “Assignee”"ASSIGNEE") all, or any a ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, howeverin a minimum amount of $5,000,000 (or, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agentif less, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate all of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s 's remaining rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee hereunder); PROVIDED that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”)Company, together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.the
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent consent, and received the consents of the Issuing Lender and (if applicable) the Company, with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “Participant”"PARTICIPANT") participating interests in any LoansLoan, the Commitment Commitments of that such Lender and the other interests of that such Lender (the “originating Lender”"ORIGINATING LENDER") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) 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) Holdingsthe Company, the L/C Issuer, the Swingline Issuing Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders or the consent of a particular Lender, in each case as described in the first proviso PROVISO to Section 11.01SECTION 11.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01SECTIONS 4.1, 4.03 4.3 and 11.05 11.5 as though it were also a Lender hereunderhereunder (PROVIDED, with respect to SECTIONS 4.1 and 4.3, the Company shall not be 87 required to pay any amount which it would not have been required to pay if no participating interest had been sold), and 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 the 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. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation.
(ed) Notwithstanding any other provision in of this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge all or any portion of of, its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Compass International Services Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Company (at all times other than during the existence of an Event of Default or Unmatured Event of Default) and the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Committed Loans, the Commitment and the other interestsrights and obligations of such Lender hereunder; provided that (i) if the 364-Day Credit Agreement is still in effect, such Lender shall concurrently assign to the same Assignee a proportionate share of such Lender's Committed Loans, Commitment and other rights and obligations under the 364-Day Credit Agreement, (ii) except in the case of an assignment by a Lender of all of its remaining rights and obligations hereunder and (if applicable) under the 364-Day Credit Agreement, the sum of the amount of the Commitment of such assigning Lenderso assigned and the amount (if any) of the "Commitment" of such Lender under and as defined in the 364-Day Credit Agreement concurrently assigned to the same Assignee shall not be less than $5,000,000; and provided further, however, that Holdings (iii) the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ax) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cy) such Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit G ("Assignment and Acceptance") and (z) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an which fee shall cover both the assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment hereunder and any outstanding Swingline Loansconcurrent assignment under the 364-Day Credit Agreement).
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent (and received, if applicable, the consent of the Company) with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefromhereunder, and (iiiii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its such rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantoobligations.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any LoansLoan, the Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documentshereunder; provided, however, provided that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan DocumentAgreement, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01Section
10.1. In the case of any such participation, the Each Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender hereunder, and 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.
(ed) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Smith a O Corp)
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of the Administrative AgentAgent and, but only so long as there does not exist an Event of Default, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees financial institutions (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunderhereunder in a minimum amount of $4,000.000.00; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Company and the Agent an Assignment and Assumption Agreement; and (iii) the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a)3,500.00. In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeAssumption Agreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it pursuant to such Assignment and AcceptanceAssumption Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Assumption Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Percentage Share arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Holdings (each a “Participant”) participating interests in any Loans, the Commitment funding commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent 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, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $4,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Lender or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such 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 heretoFederal Reserve Lender.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrowers at all times other than during the existence of an Event of Default and the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Borrowers or the Agent shall be required in connection with any assignment and delegation by a Lender to a Lender Affiliate of such Lender or to another Lender) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of the lesser of $5,000,000 or such Lender's entire remaining interest in the Loans, the Commitments and the other rights and obligations hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrowers and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrowers and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuerfee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrowers shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrowers (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrowers and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01the
01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.01, 4.03 3.03 and 11.05 10.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" by the Borrowers and provided to it by the Borrowers or any Subsidiary of the Borrowers, or by the Agent on such Borrower's or Subsidiary's behalf, in connection with this Agreement or any other provision Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, or (ii) was or becomes available on a nonconfidential basis from a source other than the Borrowers, provided that such source is not bound by a confidentiality agreement with the Borrowers known to the Lender; provided further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning the Borrowers or its Subsidiaries which has been delivered to Agent or the Lenders pursuant to this Agreement or which has been delivered to the Agent or the Lenders by the Borrowers in connection with the Lenders' credit evaluation of the Borrowers prior to entering into this Agreement; provided that, unless otherwise agreed by the Borrowers, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. The Borrowers acknowledge that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrowers, or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and the Borrowers hereby authorize each Lender to share any information delivered to such Lender by the Borrowers and their Affiliates pursuant to this Agreement, or in connection with the decision of such Lender to enter into this Agreement, to any Lender may at any time pledge such Subsidiary or assign a security interest in all or any portion of its rights under this Agreement to secure obligations Affiliate of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided it being understood that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee Subsidiary or assignee for Affiliate of any Lender receiving such information shall be bound by any obligation of confidentiality as if it were a Lender as a party heretohereunder. Such Authorization shall survive the repayment of the Loans and other Obligations and the termination of the Commitments.
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Loan Document to the contrary, no registration any Lender may assign all or processing fee any portion of the Loans or Notes held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided that any payment in respect of such assigned Loans or Notes made by the Borrowers to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrowers' obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Upon the assignment pursuant to this Section 10.08 of all, or any ratable part of, the Loans, the Commitments and the other rights and obligations of a Lender to an Assignee, such Assignee shall become a party to the Intercreditor Agreement and be payable in connection with any assignment bound by W▇▇▇▇ Fargoall terms and conditions contained therein.
Appears in 1 contract
Assignments, Participations, etc. No Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Loan Obligations except as permitted by clauses (a) or (b) below.
(a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings may (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice the provisions of such assignmentthis section, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargoapplicable law, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all the ordinary course of its Commitment and Loansbusiness, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time time) sell to one or more commercial banks or other Persons not Affiliates of Holdings (each a “Participant”) participating interests in any Loansits portion of the Loan Obligations, in which case the selling Lender shall remain a Lender under the Loan Documents, the Commitment of that Participant shall not become a Lender under the Loan Documents, and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating selling Lender’s obligations under this Agreement the Loan Documents shall remain unchanged, (ii) the originating . Any Lender selling a participation hereunder shall remain solely responsible for the performance of such obligations, (iii) Holdings, its obligations and shall remain the L/C Issuer, holder of its share of the Swingline Lender outstanding Loan for all purposes under the Loan Documents. The Loan Parties and the Administrative Agent shall continue to deal solely and directly with the originating a Lender that has sold a participation hereunder in connection with the originating that Lender’s rights and obligations under this Agreement and the other Loan Documents, and each such Lender must retain the sole right and responsibility to enforce due obligations of the Loan Parties. Subject to the following, each Lender may obtain (ivon behalf of its Participants) the benefits of Article XII with respect to all participations in its part of the Loan Obligations outstanding from time to time so long as no Loan Party is obligated to pay any amount in excess of the amount that would be due to that Lender under Article XII calculated as though no participations have been made. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall transfer or grant any participating interest under which retain the Participant has rights sole right to enforce this Agreement and to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.0112.01 that affects such Participant. In Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of Borrower, maintain a register in the case United States on which it enters the name and address of any such participation, each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in the Participant Register shall be entitled conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the benefit of Sections 4.01, 4.03 contrary. Borrower and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or Administrative Agent shall have been declared or shall have become due and payable inspection rights with respect to such Participant Register (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 reasonable prior notice to the same extent as if applicable Lender) solely for purposes of demonstrating that such Loans or other obligations under the amount Loan Documents are in “registered form” for purposes of its participating interest were owing directly to it as a Lender under this Agreementthe Code.
(eb) Notwithstanding any other provision in this Agreement, any 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 BankBank or other central banking authority; 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.
. Each Lender may upon the written consent of Administrative Agent (fwhich consent shall not be unreasonably withheld or delayed), each Issuing Lender and Swing Line Lender and, if no Event of Default exists, with the consent of Borrower (which consent shall not be unreasonably withheld or delayed) Notwithstanding assign to one or more assignees (each an “Assignee”) all or any provision part of its rights and obligations under the Loan Documents so long as (i) the assignor Lender and Assignee execute and deliver to Administrative Agent an assignment and assumption agreement in substantially the form of Exhibit E (an “Assignment and Acceptance Agreement”) and pay to Administrative Agent a processing fee in the amount set forth on Appendix I, (ii) the Assignee acquires an identical percentage interest in the Commitment of the assignor Lender and an identical percentage of the interests in the outstanding Loan held by such assignor Lender, (iii) except in the case of an assignment to another Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, any partial assignment shall be in an amount equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (iv) the conditions (including, without limitation, (x) minimum amounts of the Commitment that may be assigned or that must be retained, (y) receipt by Administrative Agent of a processing and recordation fee of $3,500 and (z) receipt by Administrative Agent of an Administrative Questionnaire unless the Assignee is already a Lender) for that assignment set forth in the applicable Assignment and Acceptance Agreement are satisfied, (v) no such assignment shall be made to (A) Parent or Borrower or any of their respective Affiliates or Subsidiaries, (B) any natural Person or (C) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this Section 11.08 clause (C); provided, that the consent of Administrative Agent and of Borrower shall not be required in the case of any assignment to a Lender, an Affiliate of a Lender or an Approved Fund. The “Effective Date” in each Assignment and Acceptance Agreement must (unless a shorter period is agreeable to Borrower and Administrative Agent) be at least five (5) Business Days after it is executed and delivered by the assignor Lender and Assignee to Administrative Agent and Borrower for acceptance. Once an Assignment and Acceptance Agreement is accepted by Administrative Agent and Borrower, then, from and after the Effective Date stated therein (i) the Assignee automatically shall become a party to this Agreement and, to the contraryextent provided in that Assignment and Acceptance Agreement, no registration or processing fee have the rights and obligations of a Lender under the Loan Documents, (ii) the assignor Lender, to the extent provided in that Assignment and Acceptance Agreement, shall be payable released from its obligations to fund Borrowings under this Agreement and its reimbursement obligations under this Agreement and, in the case of an Assignment and Acceptance Agreement covering all of the remaining portion of the assignor Lender’s rights and obligations under the Loan Documents, that Lender ceases to be a party to the Loan Documents, (iii) Borrower shall execute and deliver to the assignor Lender and Assignee the appropriate Notes in accordance with this Agreement following the transfer, (iv) upon delivery of the Notes under clause (iii) preceding, the assignor Lender shall return to Borrower all Notes previously delivered to that Lender under this Agreement, and (v) Schedule 2.01 shall automatically be deemed to be amended to reflect the name, address, telecopy number, and Commitment of Assignee and the remaining Commitment (if any) of the assignor Lender, and Administrative Agent shall prepare and circulate to the Loan Parties and the Lenders an amended Schedule 2.01 reflecting those changes. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by W▇▇▇▇ Fargothe assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent, each Issuing Lender, Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full ratable portion (in accordance with its Pro Rata Share) of all Loans and participations in Letters of Credit and Swing Line Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c) Administrative Agent, acting for this purpose as an agent of Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses, the Commitments, and the principal amount (and stated interest) of the Loans of each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent, the Issuing Lender 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, the Issuing Lender and any Lender at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Sources: Credit Agreement (Midstates Petroleum Company, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, and unless an Event of Default shall have occurred and be continuing, with the L/C Issuer and written consent of the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld)Company, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Revolving Commitments and the other interestsrights and obligations of such Lender hereunder, in a minimum amount of Five Million Dollars ($5,000,000); provided, however, that no Lender that is a party as of the Date of this Agreement, may assign or delegate any ratable part of its Loans, Revolving Commitments or other rights and obligations hereunder if, after giving effect to any such assignment or delegation, the sum of (i) the then outstanding principal balance of such assigning Lender's Term Loan plus (ii) such Lender's Revolving Commitment is an amount greater than zero but less than Ten Million Dollars ($10,000,000); and provided provided, further, however, that Holdings the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of Three Thousand Five Hundred Dollars ($3,500 3,500), and unless an Event of Default shall have occurred and be continuing, with the written consent of the Company; and provided, further, that if (it being understood that i) the assignor Lender or any of its Affiliates is a Swap Provider with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) any Specified Swap Contract and (Dii) the Administrative Agent, Holdings, the L/C Issuer and the Swingline assignor Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, interest in the Loans and the Assignment Revolving Commitments to an Assignee, then such assignor Lender and Acceptance may be appropriately modified to include an assignment and delegation all of its Swingline Commitment Affiliates shall cease to be a Swap Provider and all Swap Contracts entered into by such assignor Lender or any outstanding Swingline Loansof its Affiliates shall cease to be Specified Swap Contracts for purposes of this Agreement and the other Loan Documents; and provided, further, that notwithstanding anything in this Section 10.08(a) to the contrary, so long as no Event of Default shall have occurred and be continuing, no Lender may assign all or any portion of its interests hereunder to any Assignee if, on the date the assignment is to become effective, a payment made by Agent to such Assignee would be subject to any U.S. withholding tax. Any consent to assignment required of the Agent or of the Company pursuant to this Section 10.08 74 shall not be unreasonably withheld.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(asubsection 10.08(a)), Holdings the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Revolving Commitment and, if the assignor Lender has retained a portion of its Loans and its Revolving Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolving Commitments arising therefrom. The Revolving Commitment allocated to each Assignee shall reduce such Revolving Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Revolving Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.01, 4.03 3.03 and 11.05 10.05 as though it were also a Lender hereunder, and 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.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision to the contrary contained elsewhere in this Agreement, any Lender (a "granting Lender") may from time to time designate a special purpose funding vehicle (an "SPFV") identified as such in writing by the granting Lender to the Agent and the Company, the option to fund all or any part of any Loan that such granting Lender would otherwise be obligated to fund hereunder; provided, however, that notwithstanding any such designation, (i) the granting Lender's obligations under this Agreement shall remain unchanged, and the granting Lender shall remain solely responsible for the performance of such obligations, including any failure by an SPFV to fund any Loan, (ii) the Company and the Agent shall continue to deal solely and directly with the granting Lender and shall deliver all notices, including borrowing notices, and make all payments, including with respect to any Loan or part thereof funded by an SPFV, directly and solely to the granting Lender, (iii) other than the right to receive payment in respect of any Loan or part thereof funded by an SPFV, no SPFV shall have any rights under the Loan Documents, including with respect to increased costs, funding losses in excess of what the granting Lender would have been entitled to if it had funded such Loan, and (iv) the granting Lender shall not grant an SPFV any rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document. Nothing herein shall constitute a commitment by any SPFV to make all or any part of any Loan. The making of a Loan or part thereof by an SPFV hereunder shall utilize the Commitment of the granting Lender to the same extent, and as if, such Loan or part thereof were made by such granting Lender. Each party hereto agrees that no SPFV shall be liable for any indemnity or similar payment obligation under this Agreement or any other Loan Document (all liability for which shall remain with the granting Lender). In furtherance of the foregoing, each party hereto agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPFV, it will not institute against, or join any other person in instituting against, such SPFV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything in this Section 11.08 10.08(f) to the contrary, no registration or any SPFV may (i) with notice to, but without the prior written consent of, the Company and the Agent and without paying any processing fee shall therefor, assign all or any portion of its interests in any Loans to the granting Lender or assign all or any portion of its interests in any Loan for security purposes to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support to or for the account of such SPFV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPFV. As this Section 10.08(f) applies to any particular SPFV, this Section may not be payable in connection with any assignment by W▇▇▇▇ Fargoamended without the written consent of such SPFV.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrowers (at all times other than during the existence of an Event of Default) and Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Agent or the Administrative Agent, the L/C Issuer or the Swingline Lender Borrowers shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount equal to the lesser of (i) $5,000,000 or (ii) the remaining amount of such Lender's Commitments; and provided furtherprovided, however, that Holdings Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Borrowers and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment and Acceptance"), together with any Note or Notes subject to such assignment, and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuerfee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrowers shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings Borrowers (a “"Participant”") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “"originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.")
Appears in 1 contract
Sources: Credit Agreement (Specialty Equipment Companies Inc)
Assignments, Participations, etc. (a) Any Each Lender may, with without --------------------------------- the written consent of the Borrower, but with prior notice to the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at sell or assign any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, the Loan of the Loans, the Commitment, the L/C Obligations such Lender and the other rights and obligations of such Lender hereunder; providedto any Person or any assignee thereof (an "Assignee") unless the sale or assignment of the Loan and such other rights and obligations of such Lender would reasonably put the business of the Borrower at a competitive disadvantage, however, that (i) no written then such sale or assignment shall require the consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such Borrower. The assigning Lender or within and the same “family of funds” as such assigning LenderAssignee shall enter into an assignment agreement, provided that if the proposed Assignee is another Lender, the Lender seeking in form and substance satisfactory to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“"Assignment and Acceptance”"), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form sale or assignment ------------------------- of the Notice Loan to be assigned and, subject to paragraphs (e) and (f) of Assignment this Section 9.11, upon execution and Acceptance attached as Schedule 1 to the delivery of such Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, (ii) and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee and to the resulting adjustment extent of the Commitments, Loans and L/C Obligations arising therefromtheir respective interests, and (iiiii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptanceassignment agreement, relinquish its rights and be released from its obligations under the Loan Financing Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(cb) Within five Each Lender may sell participations to one or more banks or other entities (5other than the Borrower or any of its Affiliates) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent in or to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained all or a portion of its Loans rights and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans obligations under this Agreement and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents's Note; provided, however, that (i) the originating such Lender’s 's obligations under this -------- ------- Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Holdingssuch Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has rights right to approve any amendment toor waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or waiver consent would reduce the principal of, or interest on, the Note or any fees or other amounts payable hereunder, or release of all or substantially all of the Collateral, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(c) A Lender may, in connection with respect toany assignment or participation or proposed assignment or participation pursuant to this Section 9.11, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided, that prior to any such disclosure, the assignee or -------- participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrower received by it from such Lender.
(d) Notwithstanding any other provision contained in this Agreement or any other Financing Document to the contrary, any Lender may assign all or any portion of the Loan Documentheld by it as collateral security, except provided that any -------- payment in respect of such assigned Loan or Note made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect to such assigned Loan or Note to the extent of such amendment, consent or waiver would require unanimous consent of payment. No such assignment shall release the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a assigning Lender from its obligations hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for purposes of this Section 9.11, to maintain a register (the "Register") on which it will record the Loans made by each of the Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any other provision such recordation, or any error in this Agreementsuch recordation shall not affect the Borrower's obligations in respect of such Loans. With respect to any Lender, the transfer of the rights to the principal of, and interest on, any Lender may at any time pledge Loan shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Loans and prior to such recordation all amounts owing to the transferor with respect to such Loans shall remain owing to the transferor. The registration of assignment or assign a security interest in transfer of all or part of any portion Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Acceptance pursuant to Section 9.11
(a) The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its rights duties under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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 heretoSection 9.11(e).
(f) Notwithstanding Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in any provision in case where the consent of the Borrower is required by this Section 11.08 Section, by the Borrower) together with payment to the contrary, no Administrative Agent of a registration or and processing fee of $3,500, the Administrative Agent shall be payable (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in connection with any assignment the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan acquired by W▇▇▇▇ Fargoit pursuant to such Assignment and Acceptance and, if such assigning Lender has retained a Loan, a new Note to the order of such assigning Lender in an amount equal to the Loan retained by it hereunder.
Appears in 1 contract
Sources: Credit Agreement (Pg&e Corp)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative AgentBorrower, the L/C Issuer Agent and the Swingline LenderIssuing Bank, and in which consent of the case of an assignment of Revolving Loans, Holdings (which in each case Borrower shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided, that no written consent of the Borrower, the Agent or the Issuing Bank shall be required in connection with any assignment and delegation by a Bank to (x) an Eligible Assignee that is an Affiliate of such Bank or (y) another Bank (each an “Assignee”)) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentBorrower, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Agent and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent Issuing Bank may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower, the Agent and the Administrative Agent Issuing Bank by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower, the Agent and the Issuing Bank an Assignment and Acceptance in the form of Exhibit E (an “Assignment and Acceptance”) and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within 4,000; and provided, further, each Bank’s Pro Rata Share shall be the same “family in each type of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansCommitment.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (andand the Borrower, if required, the Agent and the Issuing Bank have provided its their consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; providedDocuments (and, howeverin the case of an Assignment and Acceptance covering all of the assigning Bank’s rights and obligations under this Agreement, that the assignor Lender such Bank shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 cease to be a party hereto but shall continue to be entitled to the extent such rights relate benefits of Sections 4.1, 4.3, 4.4, 12.4 and 12.5 with respect to the time facts and circumstances occurring prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantosuch assignment).
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided provided, that the L/C Issuer, the Swingline Lender and Holdings each consent Borrower consents to such assignment in accordance with Section 11.08(a12.9(a)), Holdings shall the Borrower shall, if requested by the Assignee or the assignor Bank thereunder, execute and deliver to the Administrative Agent any new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment Commitments and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment Commitments retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank) and the assignor Bank shall deliver its Note or Notes marked “exchanged” or “cancelled,” as applicable, if anyto the Agent. Immediately upon payment of the processing fee payment under the Assignment and Acceptance and the satisfaction of the other conditions set forth in Section 12.9(a), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) The Agent shall maintain at its address referred to in Schedule 12.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice. Any Lender assignment of any Loan or other obligations shall be effective only upon an entry with respect thereto being made in the Register.
(e) Any Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “originating LenderOriginating Bank”) hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderOriginating Bank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) Holdingsthe Borrower, the L/C IssuerAgent, the Swingline Lender Issuing Bank and the Administrative Agent other Banks shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating LenderOriginating Bank’s rights and obligations under this Agreement and the other Loan Documents, . Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.0112.1 that directly affects such Participant. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3, 4.4 and 11.05 12.5 as though it were also a Lender hereunderBank hereunder (but not in any greater amounts than would have been payable to the Bank selling the participation if no participation were sold), and not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign provided such Participant agrees to be subject to Section 2.14 as though it were 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; 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.
(f) Notwithstanding any provision Nothing contained in this Section 11.08 Agreement shall prevent a Bank from pledging its interest in its Loans to a Federal Reserve Bank in the Federal Reserve System of the United States in accordance with applicable law.
(g) After payment in full of, and satisfaction of all Obligations under, any Note, the Bank or other party holding such Note agrees to promptly return such Note marked “Paid in Full” to the contraryBorrower.
(h) Notwithstanding the foregoing provisions of this Section 12.9, no registration assignment or processing fee shall participation may be payable made if such assignment or participation involves, or could involve, the use of assets that constitute, or may be deemed under ERISA, the Code or any other applicable law, or any ruling or regulation issued thereunder, or any court decision, to constitute the assets of any employee benefit plan (as defined in connection with section 3(3) of ERISA) or any assignment by W▇▇▇▇ Fargoplan as defined in section 4975(e)(1) of the Code).
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees Lender (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Notes and the other interests, rights and obligations hereunder of such assigning Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum amount of not less than $1,000,000 or such Lender's entire Proportionate Share, in each case, unless otherwise agreed in writing by the Borrowers and the Agent; and provided furtherprovided, however, that Holdings the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E five (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B5) a Business Days' prior written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrowers and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance"), for acceptance and for recording by the Agent in the Register, together with any Note subject to such assignment; (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 4,000, and (it being understood that with respect iv) the parties to an each such assignment shall have agreed to more than one Eligible Assignee within reimburse the same “family Agent for all fees, costs and expenses (including, without limitation, the reasonable fees and out-of-pocket expenses of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable counsel for the series of simultaneous assignmentsAgent) and (D) incurred by the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only Agent in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loanssuch assignment.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Transaction Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (but shall continue to be entitled to any Interest and other Obligations accrued for its account hereunder, not so assigned and not yet paid)).
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrowers shall execute and deliver to the Agent, a new Note evidencing such Assignee's assigned Proportionate Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Note in the principal amount of the Proportionate Share of the Loans retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the CommitmentsProportionate Share of the Loans.
(d) By executing and delivering an Assignment and Acceptance, Loans the assigning Lender thereunder and L/C Obligations arising therefrom, the Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (iiii) the such assignor Lender shallwarrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the outstanding balances of its Loan, without giving effect to the extent that rights and obligations hereunder and under the other Loan Documents assignments thereof which have been assigned by it pursuant to not become effective, are as set forth in such Assignment and Acceptance, relinquish its rights (ii) except as set forth in (i) above, such assignor Lender makes no representation or warranty and be released from assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or the financial condition of any Credit Party or the performance or observance by any Credit Party of any of its obligations under the Loan Documentsthis Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto; provided, however, (iii) such Assignee represents and warrants that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 it is legally authorized to the extent enter into such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each ; (iv) such Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent confirms that it has received (anda copy of this Agreement, if necessary, consented to) an executed together with copies of the most recent financial statements delivered pursuant to Section 6.07 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance Acceptance; (v) such Assignee will independently and payment of without reliance upon the processing fee (and provided that the L/C IssuerAdministrative Agent, the Swingline such assignor Lender or any other Lender and Holdings each consent based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignment Assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such Assignee agrees that it will perform in accordance with Section 11.08(a)), Holdings shall execute and deliver to their terms all the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested obligations which by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note terms of this Agreement are required to be in exchange for, but not in payment of, the Note held performed by such it as a Lender, if any).
(de) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Holdings a Credit Party (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Loans and the other interests of that Lender (the “originating "Originating Lender”") hereunder and under the other Loan Transaction Documents; provided, however, that (i) the originating Originating Lender’s 's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Credit Parties and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender’s 's rights and obligations under this Agreement and the other Loan Transaction Documents, (iv) such Participant shall be entitled to the benefit of the provisions contained in Section 2.13 limited, as to each Participant, to the amount the selling Lender could claim and (ivv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender.
(f) Each Lender agrees to maintain the confidentiality of all information identified as "confidential" by the Borrowers and provided to it by the Borrowers, or by the Agent on the behalf of the Borrowers, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than a Credit Party or one of its affiliates; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, each Borrower authorizes each Lender to disclose to any Participant or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender's possession concerning a Borrower or a Subsidiary Guarantor which has been delivered to the Agent or the Lenders as described in the first proviso pursuant to Section 11.01. In the case of any such participation, the Participant shall be entitled this Agreement or which has been delivered to the benefit Agent or the Lenders by a Borrower or the Guarantor in connection with the Lenders' credit evaluation of Sections 4.01a Borrower and/or the Guarantor prior to entering into this Agreement, 4.03 and 11.05 as though it were also provided that such participant or assignee (or prospective participant or assignee) agrees in writing to be bound by a Lender hereunder, and 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 confidentiality agreement similar to the same extent as if the amount provisions of its participating interest were owing directly to it as a Lender under this AgreementSection 10.11(e).
(eg) Notwithstanding any other provision contained in this AgreementAgreement or any other Transaction Document to the contrary, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement Proportionate Share of the Notes held by it to secure obligations any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; , provided that each such assignment shall be made in accordance with applicable law and no such pledge or assignment shall release such a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company at all times other than during the existence of an Event of Default and the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (PROVIDED, that no written consent of the Company or the Administrative Agent shall be required in connection with any assignment and delegation by a Lender to an Affiliate of such Lender) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of Five Million Dollars ($5,000,000); providedPROVIDED, howeverHOWEVER, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the such Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the such -91- Assignee; (B) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of EXHIBIT H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of Three Thousand Five Hundred Dollars ($3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a3,500). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided PROVIDED, that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(apursuant to subsection 10.8(a)), Holdings the Company shall execute and deliver to the Administrative Agent any new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitments allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO.
(d) Any Lender may may, upon prior written notice to the Company and the Administrative Agent, at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Revolving Commitment of that Lender and the other interests of that Lender (the “"originating Lender”") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso FIRST PROVISO to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5, with respect to its participation interest, as though it were also a Lender hereunder and subject to the same qualifications and limitations as -92- if it were a Lender hereunder, and provided there is no duplicate recovery, but shall not have any other rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company or any Subsidiary of the Company, or by the Administrative Agent on such Company's or Subsidiary's behalf, in connection with this Agreement or any other provision Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, PROVIDED, that such source is not bound by a confidentiality agreement with the Company known to such Lender; PROVIDED, FURTHER, HOWEVER, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may at be party, (E) to the extent reasonably required in connection with the exercise of any time pledge remedy hereunder or assign under any other Loan Document, and (F) to such Lender's independent auditors and other professional advisors, provided that each such Person has agreed to preserve the confidentiality of such material. Notwithstanding the foregoing, the Company authorizes each Lender to disclose to any Participant or Assignee (each, a security interest "Transferee") and to any prospective Transferee, such financial and other information in all such Lender's possession concerning the Company or its Subsidiaries which has been delivered to any Agent or any portion Lender pursuant to this Agreement or which has been delivered to any Agent or any Lender by the Company in connection with the Lenders' credit evaluation of the Company prior to entering into this Agreement; PROVIDED, that, unless otherwise agreed by the Company, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. In the event that any Agent or Lender or any recipient of nonpublic information obtained pursuant to clause (E) above is required or requested to disclose any confidential information pursuant to clauses (A)-(D) above, such recipient shall give the Company prompt prior written notice of such requirement or request so that the Company may seek an appropriate protective order, and, at the expense of the Company, such recipient shall cooperate with the Company in any proceedings to obtain such a protective order to the extent such cooperation is necessary to obtain such protective order and to the extent the recipient determines its cooperation will not be disadvantageous to it. In the absence of a protective order, if the recipient is nonetheless compelled or required to disclose such confidential information in the opinion of its rights under this Agreement to secure obligations of legal counsel, it may disclose such Lenderconfidential information, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no the recipient shall give the Company written notice of the confidential information to be disclosed as far in advance of the disclosure as is practicable and, upon the request and at the expense of the Company, shall use its reasonable effects to obtain assurances that confidential treatment shall be accorded 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 heretoinformation by the receiving party.
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Loan Document to the contrary, no registration any Lender may assign all or processing fee any portion of the Loans or Notes held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank, PROVIDED, that any payment in respect of such assigned Loans or Notes made by the Company to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall be payable satisfy the Company's obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) BOA may assign its obligations as an Issuer to an Affiliate of BOA without the prior written consent of any party hereto. In connection with any assignment such assignment, each of the parties hereto agrees to execute such documents as are reasonably requested by W▇▇▇▇ Fargosuch Affiliate of BOA to effectuate such assignment.
Appears in 1 contract
Sources: Credit Agreement (LKQ Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), A Bank may at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") allwith the written consent of the Borrower (other than during the existence of an Event of Default) and of the Agent (at all times), which consent shall not be unreasonably withheld (provided that no written consent shall be required for an Eligible Assignee that is an Affiliate of such assignor Bank) all or any ratable part of all, its Pro Rata Share of the Loans, the Commitment, the L/C Obligations Line of Credit and the other rights and obligations of such Lender hereunderassignor Bank hereunder with respect to the Committed Loans and the Line of Credit (excluding, however, its interest in any outstanding Bid Loans), in a minimum amount (with respect to such Bank's Commitment) of $5,000,000; provided, however, that (i) no written consent of Holdings such assignment shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that permitted if the proposed Assignee effect thereof is another Lenderto cause the remaining Commitment of the assignor Bank to be less than $15,000,000, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) no assignment may be made of any outstanding Committed Loan except in connection with an assignment of all a corresponding proportional share of a Lender’s rights and obligations with respect to its the assignor Bank's Commitment. However, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loansconditioned on, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender assignor Bank until, (i) written notice of such assignment, substantially in connection with the interest so assigned form of the attached Exhibit A shall have been given to an Assignee until the Borrower and the Agent by such Bank and the Assignee; (Aii) such Lender Bank and its Assignee shall have delivered to Holdings the Agent and the Administrative Agent Borrower an Assignment and Acceptance Assumption Agreement substantially in the form of the attached Exhibit E B (“"Assignment and Acceptance”), Assumption Agreement") (together with any Note or Notes Note(s) subject to such assignment); and (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (Ciii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent has received (and, if required, provided its consent with respect thereto all conditions and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment requirements of the above-referenced processing feeassignment have been met, then to the extent that rights and obligations hereunder have been assigned (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor Bank shall relinquish such assigned rights and be released from such assigned obligations under the Loan Documents, (iiiii) this Agreement shall be deemed to be amended to the extent, but only to the extent, extent necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Pro Rata Shares of the Loan arising therefrom, and (iiiiv) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Pro Rata Share allocated to each an Assignee shall reduce the Commitment, Loans and L/C Obligations Pro Rata Share of the assigning Lender pro tantoBank.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor A Bank or Designated Bid Lender (such Note to be in exchange for, but not in payment of, the Note held by such "originating Lender, if any).
(d") Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in the Line of Credit or in any Loans, Bid Loans made by the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, provided that (i) the originating Lender’s 's obligations under this the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender (or, in the case of a Designated Bid Lender, its Designating Bank) in connection with the originating Lender’s rights Advances and obligations under this Agreement and the other Loan Documents, and (iv) (A) no Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment, consent or waiver with respect to any Loan Document, except (1) in the case of a participation that includes an interest in the originating Lender's Commitment, to the extent such amendment, consent or waiver would require unanimous consent of the Banks under Section 7(a) of the Co-Lender Agreement, or (2) in the case of a participation that is limited to an interest in one or more Bid Loans, to the extent such amendment, consent or waiver would take effect while such Bid Loan(s) remained outstanding and would require the unanimous consent of the Banks under any of the following clauses of Section 7(a) of the Co-Lender Agreement: clause (ii), to the extent that the proposed action would affect Bid Loans or any amount payable with respect to Bid Loans; clause (iii), to the extent that the proposed action would affect any amount payable in connection with Bid Loans; clause (iv); clause (v); and clause (vi); and (B) no Designated Bid Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent or waiver with respect toto any Loan Document greater that the lesser of (1) such rights of approval as may have been granted to such Designated Bid Lender in connection with its entry into the relevant Designation Agreement, or (2) as described in Section 7(e)(i) as being permitted to Designated Bid Lenders, (v) with respect to the sale of participating interests in the Line of Credit (it being understood that the limitations of this Agreement clause (v) shall not apply with respect to the sale of a participating interest in all or any portion of a Bid Loan), each participating interest in a Bank's Commitment shall be in a minimum amount of $5,000,000, and no such participation shall be permitted if the non-participated interest of the originating Lender in its Commitment would thereafter be less than $15,000,000. A Participant shall not have any rights under the Loan Documents or the Co-Lender Agreement, and all amounts payable by the Borrower hereunder shall be determined as if the originating Lender had not sold such participation.
(d) Notwithstanding any other provision of this Agreement, any other Loan Document or the Co-Lender Agreement:
(i) a Bank or Designated Bid Lender may pledge its interest in the Borrower's obligations under the Loan Documents in favor of any Federal Reserve Bank in accordance with Federal law; and (ii) a Designated Bid Lender may pledge its interest in the Borrower's obligations under the Loan Documents in respect of any Bid Loan in favor of any Liquidity Provider qualifying as such with respect to the Bid Loan so pledged.
(i) Any Bank may at any time, with the prior written consent of the Borrower and the Agent, which consent shall not be unreasonably withheld, designate one Designated Bid Lender to fund Bid Loans on behalf of such Designating Bank subject to the terms of this Section 16(e), and the provisions of Sections 16(a), (b) and (c) shall not apply to such designation, EXCEPT THAT no Designating Bank shall enter into any agreement under which its Designated Bid Lender has rights to approve any amendment, consent or waiver with respect to any Loan Document, except to the extent such amendment, consent or waiver would amend any right of Designated Bid Lenders or would require the unanimous consent of the Lenders as described in Banks under any of the first proviso to following clauses of Section 11.01. In 7(a) of the case of any such participationCo-Lender Agreement: clause (ii), the Participant shall be entitled to the benefit of Sections 4.01extent that the proposed action would affect Bid Loans or any amount payable with respect to Bid Loans; clause (iii), 4.03 and 11.05 as though it were also a Lender hereunder, and 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 that the proposed action would affect any amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with Bid Loans; clause (iv); clause (v), if the proposed action would take effect while any assignment Bid Loans made by W▇▇▇▇ Fargo.such Designated Bid Lender were outstanding; and clause
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative AgentBorrower, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheldwithheld (provided that such consent shall not be required at any time that a Default or an Event of Default exists or in connection with any assignment by a Lender to another Lender or to an Eligible Assignee that is an Affiliate of a Lender or a Related Fund of a Lender), and the Agent, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, provided that such consent of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Agent or the Administrative Agent, the L/C Issuer or the Swingline Lender Borrower shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an “Assignee”) all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $1,000,000 (or such lesser amount to which the Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; provided, however, that any assignment of the Swing Line Commitment and provided Swing Line Loans thereunder (x) shall require the prior written consent of Agent which may be granted or withheld in its sole discretion and (y) shall be in the full amount of the Swing Line Commitment and outstanding Swing Line Loans at such time; provided, further, however, that Holdings in no event shall more than one Lender hold the Swing Line Commitment and Swing Line Loans at any time; and provided, further, however, in all instances, that the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form and substance reasonably satisfactory to Agent, such Lender and its Assignee (an “Assignment and Acceptance”); and
(Ciii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee3,500, only one such provided no processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any be required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only paid in connection with an assignment transaction involving by a Lender to an assignment Eligible Assignee that is an Affiliate of all such Lender. No less frequently than once every fiscal quarter, Agent shall notify Swing Line Lender of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified any assignments made to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loansentity that was not previously a Lender.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, ; and
(ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 .
(c) Subject to the extent such rights relate provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the time prior to the effective date Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment, Loans and L/C Obligations Commitment allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations such Commitment of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Documents; providedprovided , however, that that:
(i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, and ; and
(iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01subsection 9.1(a). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall not 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 any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(e) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or (i) assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided , (ii) in the case of any Lender that no is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such pledge or assignment shall release Loans) to the trustee under any indenture to which such Lender from any is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or substitute any pledged Loans to the extent of such pledgee payment. No such assignment or assignee for such pledge shall release the assigning Lender as a party heretofrom its obligations hereunder.
(f) Notwithstanding The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Commitments, Loans and any provision Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in this Section 11.08 the Register. Any assignment or transfer of all or part of a Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the contrarydesignated assignee and, no registration or processing fee if applicable, assignor, and the old Notes shall be payable in connection returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any assignment by W▇▇▇▇ Fargoentry relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.
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Sources: Credit Agreement (Panther Expedited Services, Inc.)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Borrower and the Agent, which consent of the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case Borrower shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided, that no written consent of the Borrower or the Agent shall be required in connection with any assignment and delegation by a Bank to (x) an Eligible Assignee that is an Affiliate of such Bank or (y) another Bank (each an “Assignee”)) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F (an “Assignment and Acceptance”) and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans4,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and the Borrower and the Agent have provided its their consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; providedDocuments (and, howeverin the case of an Assignment and Acceptance covering all of the assigning Bank’s rights and obligations under this Agreement, that the assignor Lender such Bank shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 cease to be a party hereto but shall continue to be entitled to the extent such rights relate benefits of Sections 4.1, 4.3, 4.4, 12.4 and 12.5 with respect to the time facts and circumstances occurring prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tantosuch assignment).
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided provided, that the L/C Issuer, the Swingline Lender and Holdings each consent Borrower consents to such assignment in accordance with Section 11.08(a12.9(a)), Holdings shall the Borrower shall, if requested by the Assignee or the assignor Bank thereunder, execute and deliver to the Administrative Agent any new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its CommitmentLoans, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank) and the assignor Bank shall deliver its Note or Notes marked “exchanged” or “cancelled,” as applicable, if anyto the Agent. Immediately upon payment of the processing fee payment under the Assignment and Acceptance and the satisfaction of the other conditions set forth in Section 12.9(a), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee.
(d) The Agent shall maintain at its address referred to in Schedule 12.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks, and principal amount of the Loans owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice. Any Lender assignment of any Loan or other obligations shall be effective only upon an entry with respect thereto being made in the Register.
(e) Any Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender Loans and the other interests of that Lender Bank (the “originating LenderOriginating Bank”) hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderOriginating Bank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) Holdingsthe Borrower, the L/C Issuer, the Swingline Lender Agent and the Administrative Agent other Banks shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating LenderOriginating Bank’s rights and obligations under this Agreement and the other Loan Documents, . Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.0112.1 that directly affects such Participant. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.014.1, 4.03 4.3, 4.4 and 11.05 12.5 as though it were also a Lender hereunderBank hereunder (but not in any greater amounts than would have been payable to the Bank selling the participation if no participation were sold), and not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign provided such Participant agrees to be subject to Section 2.14 as though it were 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; 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.
(f) Notwithstanding any provision Nothing contained in this Section 11.08 Agreement shall prevent a Bank from pledging its interest in its Loans to a Federal Reserve Bank in the Federal Reserve System of the United States in accordance with applicable law.
(g) After payment in full of, and satisfaction of all Obligations under, any Note, the Bank or other party holding such Note agrees to promptly return such Note marked “Paid in Full” to the contraryBorrower.
(h) Notwithstanding the foregoing provisions of this Section 12.9, no registration assignment or processing fee shall participation may be payable made if such assignment or participation involves, or could involve, the use of assets that constitute, or may be deemed under ERISA, the Code or any other applicable law, or any ruling or regulation issued thereunder, or any court decision, to constitute the assets of any employee benefit plan (as defined in connection with section 3(3) of ERISA) or any assignment by W▇▇▇▇ Fargoplan as defined in section 4975(e)(1) of the Code).
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of the Administrative Company, the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Issuing Bank (which in each case consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, all or any ratable part fraction of allits Commitment and outstanding Committed Loans in a minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $25,000,000, in the amount of its Commitment.
(ii) Any Lender may without the prior consent of the LoansCompany assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment, the L/C Obligations .
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and the other rights and obligations of such Lender hereunderany note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iiv) no written consent of Holdings Any Lender, if so requested by the Company under Section 5.09, shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender assign to an another Eligible Assignee that is its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may assign any Bid Loans made by it hereunder except to another Lender or an Affiliate to any other Person to which it is also assigning all or a fraction of such assigning Lender or within the same “family of funds” as such assigning Lenderits Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i). sf-712846 67
(b) No assignment shall become effective, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Company and the Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal entitled to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such each Lender in connection with the interest interests so assigned by such Lender to an Assignee Assignee, until (Ai) such Lender and its such Assignee shall have delivered to Holdings and the Administrative Agent executed an Assignment and Acceptance Assumption Agreement substantially in the form of Exhibit E (“Assignment 12.08(b) and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to such Assignee shall have been given to the Company and the Agent by such Lender and such Assignee, in substantially the form of the Attachment A to Exhibit 12.08 (a "Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the AssigneeAssignment"); (Cii) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 shall have been paid to the Agent by the assignor Lender or the Assignee; and (it being understood that with respect iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignmentsin clauses (i) and (Dii) the Administrative Agent, Holdingsor (B) if earlier, the L/C Issuer Agent has notified the assignor Lender and the Swingline Lender each shall have provided any required consent to such assignment Assignee of its receipt of the items mentioned in accordance with this Section 11.08(a). In connection with any clauses (i) and (ii) and that it has acknowledged the assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment countersigning the Notice of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansAssignment.
(bc) From and after the effective date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received of any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeassignment hereunder, (i) the Assignee thereunder shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssignee by the assignor Lender, shall have the rights and obligations of a Lender hereunder and under the each other Loan DocumentsDocument, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shallLender, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptancethe Assignee, relinquish its rights and shall be released from its future obligations hereunder and under the each other Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Document.
(d) Any Subject to Section 12.08(e), any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates (each of Holdings (such Persons being herein called a “"Participant”") participating interests in any of the Loans, the its Commitment of that Lender and the or other interests of that such Lender (the “originating Lender”) hereunder and under the other Loan Documentshereunder; provided, however, that (i) the originating Lender’s no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.;
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of provided that such Lender hereunder; provided, however, that (i) no written consent of Holdings Agent shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender)(each an “Assignee”) all, or within the same “family of funds” as such assigning Lenderany part of, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment Revolving Loan Commitments and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $250,000 or, if less, the entire Revolving Loan Commitment or Loan(s) of such Lender; and provided furtherprovided, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Borrower and the Administrative Agent by such Lender and the Assignee; and
(Cii) the assignor Lender or and its Assignee shall have paid delivered to the Administrative Borrower and Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified in form and substance reasonably satisfactory to include Agent, such Lender and its Assignee (an assignment “Assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansAcceptance”).
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, Acceptance:
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, ; and
(ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrower shall execute and deliver to the Administrative Agent any new Note requested by such Assignee Notes evidencing such Assignee’s assigned Loans and Revolving Loan Commitment portion and, if the assignor Lender has retained a portion of its Loans and its Revolving Loan Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Revolving Loan Commitment portion retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment or satisfaction of, the Note Notes held by Lender). This Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolving Loan Commitments arising therefrom. The Revolving Loan Commitment allocated to each Assignee shall reduce such Lender, if any)Revolving Loan Commitment of the assigning Lender to the same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings Borrower (a “Participant”) participating interests in any Loans, the Revolving Loan Commitment of that Lender and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Documents; provided, however, that ,:
(i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, and ; and
(iv) no No Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.019.1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall not 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 any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by Borrower hereunder shall be determined as if Lender had not sold such participation.
(e) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or (i) assign a security interest in all or any portion of the Loans held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank or (ii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its rights under lenders for collateral security purposes, provided that any payment in respect of such assigned Loans made by Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy Borrower’s obligations hereunder in respect to secure obligations such assigned or pledged Loans to the extent of such Lender, including any payment. No such assignment or pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such the assigning Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretohereunder.
(f) Notwithstanding The Agent shall, on behalf of Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Loan Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and Borrower, Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Loan Commitments, Loans and any provision Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Revolving Loan Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in this Section 11.08 the Register. Any assignment or transfer of all or part of a Revolving Loan Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the contrarydesignated assignee and, no registration or processing fee if applicable, assignor, and the old Notes shall be payable in connection returned by Agent to Borrower marked “cancelled”. The Register shall be available for inspection by Borrower or any Lender (with respect to any assignment by W▇▇▇▇ Fargoentry relating to such Lender’s Revolving Loan Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Company (which in each case consent shall not be required during the existence of an Event of Default) and the Administrative Agent (such consents not to be unreasonably withheldwithheld or delayed), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the LoansLoan, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $10,000,000 (or, if less, the outstanding principal amount of such Lender's Loan); and provided furtherprovided, however, that Holdings the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) the assignor such Lender or and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note subject to such assignment and (iii) such Lender or the Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received and provided its consent (and, if to the extent required, provided its received the consent of the Company) with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days As soon as practicable after Holding’s receipt the effectiveness of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed any Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent pursuant to such assignment in accordance with Section 11.08(asubsection 10.8(a)), Holdings shall the Company shall, upon request, execute and deliver to the Administrative Agent any a new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans applicable Assignee's assigned Loans. Immediately upon the effectiveness of any Assignment and Commitment retained by the assignor Lender (such Note Acceptance, this Agreement shall be deemed to be in exchange foramended to the extent, but not in payment ofonly to the extent, necessary to reflect the Note held by such Lender, if any)addition of the Assignee and/or the resulting adjustment of the Pro Rata Shares arising therefrom.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loansthe Loan of such Lender, the Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the a Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.0110.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3, 3.4 and 11.05 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall be entitled to any greater amount pursuant to such Sections than the originating Lender would have been entitled to receive if no such participation had been sold), and 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.
(e) Any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by such Granting Lender to the Administrative Agent and the Company, the option to provide all or any part of the Loan that such Granting Lender would otherwise be obligated to make to the Company pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of any Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute, or join any other Person in instituting, against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under the laws of the United States or any State thereof with respect to any claim arising out of this Agreement. In addition, notwithstanding anything to the contrary contained in this subsection 10.8(e), any SPC may (i) with notice to, but without the prior written consent of, the Company and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institution providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Term Loan Agreement (Pactiv Corp)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Agent shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount equal to the lesser of (i) $5,000,000 or (ii) the remaining amount of such Bank's Commitments; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrowers and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuerfee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrowers shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings Borrowers (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.originating
Appears in 1 contract
Sources: Credit Agreement (Specialty Equipment Companies Inc)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative Agent, the L/C Issuer Agent and the Swingline LenderBorrower, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Agent or the Borrower shall be required in connection with any assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “Assignee”"ASSIGNEE") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $2,500,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form acceptable to Agent together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuerfee, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Revolving Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”"PARTICIPANT") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.shall
Appears in 1 contract
Sources: Credit Agreement (Software Net Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), A Bank may at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") allwith the written consent of the Borrower (other than during the existence of an Event of Default) and of the Agent (at all times), which consent shall not be unreasonably withheld (provided that no written consent shall be required for an Eligible Assignee that is an Affiliate of such assignor Bank) all or any ratable part of all, its Pro Rata Share of the Loans, the Commitment, the L/C Obligations Line of Credit and the other rights and obligations of such Lender hereunderassignor Bank hereunder with respect to the Committed Loans and the Line of Credit (excluding, however, its interest in any outstanding Bid Loans), in a minimum amount (with respect to such Bank's Commitment) of $5,000,000; provided, however, that (i) no written consent of Holdings such assignment shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that permitted if the proposed Assignee effect thereof is another Lenderto cause the remaining Commitment of the assignor Bank to be less than $15,000,000, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) no assignment may be made of any outstanding Committed Loan except in connection with an assignment of all a corresponding proportional share of a Lender’s rights and obligations with respect to its the assignor Bank's Commitment. However, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loansconditioned on, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings Borrower and the Administrative Agent may continue to deal solely and directly with such Lender assignor Bank until, (i) written notice of such assignment, substantially in connection with the interest so assigned form of the attached Exhibit A shall have been given to an Assignee until the Borrower and the Agent by such Bank and the Assignee; (Aii) such Lender Bank and its Assignee shall have delivered to Holdings the Agent and the Administrative Agent Borrower an Assignment and Acceptance Assumption Agreement substantially in the form of the attached Exhibit E B (“"Assignment and Acceptance”), Assumption Agreement") (together with any Note or Notes Note(s) subject to such assignment); and (Biii) a written notice of such assignment, together with payment instructions, addresses and related information with respect the Assignor has paid (or caused to be paid) to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent has received (and, if required, provided its consent with respect thereto all conditions and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment requirements of the above-referenced processing feeassignment have been met, then to the extent that rights and obligations hereunder have been assigned (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor Bank shall relinquish such assigned rights and be released from such assigned obligations under the Loan Documents, (iiiii) this Agreement shall be deemed to be amended to the extent, but only to the extent, extent necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations Pro Rata Shares of the Loan arising therefrom, and (iiiiv) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations Pro Rata Share allocated to each an Assignee shall reduce the Commitment, Loans and L/C Obligations Pro Rata Share of the assigning Lender pro tantoBank.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor A Bank or Designated Bid Lender (such Note to be in exchange for, but not in payment of, the Note held by such "originating Lender, if any).
(d") Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “"Participant”") participating interests in the Line of Credit or in any Loans, Bid Loans made by the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, provided that (i) the originating Lender’s 's obligations under this the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender (or, in the case of a Designated Bid Lender, its Designating Bank) in connection with the originating Lender’s rights Advances and obligations under this Agreement and the other Loan Documents, and (iv) (A) no Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment, consent or waiver with respect to any Loan Document, except (1) in the case of a participation that includes an interest in the originating Lender's Commitment, to the extent such amendment, consent or waiver would require unanimous consent of the Banks under Section 7(a) of the Co-Lender Agreement, or (2) in the case of a participation that is limited to an interest in one or more Bid Loans, to the extent such amendment, consent or waiver would take effect while such Bid Loan(s) remained outstanding and would require the unanimous consent of the Banks under any of the following clauses of Section 7(a) of the Co-Lender Agreement: clause (ii), to the extent that the proposed action would affect Bid Loans or any amount payable with respect to Bid Loans; clause (iii), to the extent that the proposed action would affect any amount payable in connection with Bid Loans; clause (iv); clause (v); and clause (vi); and (B) no Designated Bid Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent or waiver with respect toto any Loan Document greater that the lesser of (1) such rights of approval as may have been granted to such Designated Bid Lender in connection with its entry into the relevant Designation Agreement, or (2) as described in Section 7(e)(i) as being permitted to Designated Bid Lenders, (v) with respect to the sale of participating interests in the Line of Credit (it being understood that the limitations of this Agreement clause (v) shall not apply with respect to the sale of a participating interest in all or any portion of a Bid Loan), each participating interest in a Bank's Commitment shall be in a minimum amount of $5,000,000, and no such participation shall be permitted if the non-participated interest of the originating Lender in its Commitment would thereafter be less than $15,000,000. A Participant shall not have any rights under the Loan Documents or the Co-Lender Agreement, and all amounts payable by the Borrower hereunder shall be determined as if the originating Lender had not sold such participation.
(d) Notwithstanding any other provision of this Agreement, any other Loan Document or the Co-Lender Agreement:
(i) a Bank or Designated Bid Lender may pledge its interest in the Borrower's obligations under the Loan Documents in favor of any Federal Reserve Bank in accordance with Federal law; and (ii) a Designated Bid Lender may pledge its interest in the Borrower's obligations under the Loan Documents in respect of any Bid Loan in favor of any Liquidity Provider qualifying as such with respect to the Bid Loan so pledged.
(i) Any Bank may at any time, with the prior written consent of the Borrower and the Agent, which consent shall not be unreasonably withheld, designate one Designated Bid Lender to fund Bid Loans on behalf of such Designating Bank subject to the terms of this Section 16(e), and the provisions of Sections 16(a), (b) and (c) shall not apply to such designation, except that no Designating Bank shall enter into any agreement ------ ---- under which its Designated Bid Lender has rights to approve any amendment, consent or waiver with respect to any Loan Document, except to the extent such amendment, consent or waiver would amend any right of Designated Bid Lenders or would require the unanimous consent of the Lenders as described Banks under any of the following clauses of Section 7(a) of the Co-Lender Agreement: clause (ii), to the extent that the proposed action would affect Bid Loans or any amount payable with respect to Bid Loans; clause (iii), to the extent that the proposed action would affect any amount payable in connection with Bid Loans; clause (iv); clause (v), if the proposed action would take effect while any Bid Loans made by such Designated Bid Lender were outstanding; and clause (vi). No Bank may designate more than one Designated Bid Lender at any one time, and, following the termination of a designation with respect to one Designated Bid Lender, no new Designated Bid Lender may be designated until all outstanding Bid Loans made by the prior Designated Bid Lender have been paid in full. The parties to each such designation shall execute and deliver to the Borrower and the Agent for their acceptance a Designation Agreement, and, upon the Agent's receipt of (A) an appropriately completed Designation Agreement (1) executed by a Designating Bank and a designee representing that it is a Designated Bid Lender and (2) accepted by the Borrower, and (B) a processing fee in the first proviso amount of $2,500, the Agent shall accept such Designation Agreement and register such Designated Bid Lender as a Designated Bid Lender, and give prompt notice thereof to the Borrower, whereupon: from and after the effective date 146 specified in the Designation Agreement, the Designated Bid Lender shall become a party to this Agreement and to the Co-Lender Agreement, as a Designated Bid Lender, with (X) a right to make Bid Loans on behalf of its Designating Bank pursuant to Section 11.01. In 7(b)(ix) with respect to any Competitive Bid of such Designating Bank that is accepted in whole or in part by the case Borrower, and (Y) the other rights, and the obligations, provided herein and therein, subject to the limitation, however, that, ------- -- --- ---------- notwithstanding the assumption by a Designated Bid Lender of any such participationcertain of the obligations of its Designating Bank (but without limiting the Designating Bank's obligations under the following paragraph (ii)), the Participant no Designated Bid Lender shall be entitled required to the benefit make payments with respect to any of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding its obligations under this Agreement or any other Loan Document, or under the Co-Lender Agreement, except to the extent of excess cash flow of such Designated Bid Lender (i.e., cash that is not otherwise required to repay ---- obligations of such Designated Bid Lender that are then 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 Agreementpayable).
(eii) Notwithstanding any other provision in of this Agreement, any other Loan Document or the Co-Lender Agreement: regardless of any designation of a Designated Bid Lender hereunder, the Designating Bank making such designation (A) shall be and remain obligated to the Borrower, the Agent and each of the other Banks and other Designated Bid Lenders for each and every one of the obligations of the Designating Bank and its Designated Bid Lender with respect to this Agreement, any other Loan Document or the Co-Lender Agreement (including, without limitation, any indemnification obligations under the Co-Lender Agreement and other obligation to pay any amount otherwise payable to the Borrower by the Designated Bid Lender); and (B) shall indemnify, defend and hold the Agent, the Borrower, each Bank and each Designated Bid Lender harmless from and against any and all losses, costs, expenses (including reasonable attorneys' fees and the cost of any services of in-house counsel) and liabilities incurred by any such Person in connection with or arising from (1) (a) the non-performance by such Designating Bank's Designated Bid Lender of any obligation assumed by the Designated Bid Lender under its Designation Agreement, (b) any other act or omission of the Designated Bid Lender committed in violation of the provisions of any Loan Document or the Co-Lender Agreement, or (c) the failure of any representation or warranty made by such Designating Bank's Designated Bid Lender for the benefit of the Agent, the Borrower, any other Bank or any other Designated Bid Lender to be true and correct in all material respects, or (2) such Designating Bank's nonperformance of any obligation owed to its Designated Bid Lender under the Designation Agreement or any other agreement between such Designating Bank and its Designated Bid Lender with respect to the transactions contemplated hereby.
(iii) Notwithstanding any designation hereunder, the Borrower and the Agent shall continue to deal solely and directly with the Designating Bank in connection with the Advances (including any Bid Loans made by such Designating Bank's Designated Bid Lender), the Loan Documents and the Co- Lender Agreement. Each Designating Bank shall serve as the administrative agent of its Designated Bid Lender and shall on behalf of the Designated Bid Lender: (A) receive any and all payments made for the benefit of the Designated Bid Lender (and Borrower's and Agent's obligation to make any payment to the Designated Bid Lender shall be satisfied upon payment of such amount to its Designating Bank for the benefit of such Designated Bid Lender, without any duty to see to the application thereof by such Designating Bank), and (B) give and receive all communications and notices and take all actions under any Loan Document or the Co-Lender Agreement, including, without limitation, votes, approvals, waivers, consents and amendments under or relating to this Agreement, the other Loan Documents and the Co-Lender Agreement; and any notice or other communication so delivered to a Designating Bank shall be deemed validly delivered to its Designated Bid Lender, without 147 any duty on the part of the Borrower or the Agent to verify whether such notice or other communication is actually delivered by such Designating Bank to its Designated Bid Lender. The Agent shall have no responsibility for, and shall not incur liability to any Designated Bid Lender arising out of, the disposition by such Designated Bid Lender's Designating Bank of any funds or notice or other communication delivered to such Designating Bank for the account of such Designated Bid Lender in accordance herewith. Any notice, communication, vote, approval, waiver, consent or amendment of or with respect to any Loan Document or the Co-Lender Agreement that is delivered or executed on behalf of any Designated Bid Lender shall be signed by its Designating Bank as administrative agent for the Designated Bid Lender (whether or not noted as such thereon), and shall not be signed by the Designated Bid Lender on its own behalf. The Borrower, the Agent, the Banks and the other Designated Bid Lenders may rely thereon without any requirement that the Designated Bid Lender sign or acknowledge the same. No Designated Bid Lender may at any time pledge assign or assign a security interest in transfer all or any portion of its rights interest hereunder or under this Agreement any other Loan Documents, other than (X) an assignment to secure obligations of the Designating Bank which originally designated such Designated Bid Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge (Y) in accordance with the provisions of Section 16(c) 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(d).
(fiv) Notwithstanding A Designated Bid Lender shall not have any provision in this Section 11.08 right to the contrarypayment of any amount under the Loan Documents or the Co-Lender Agreement other ----- than with respect to (i) principal of and interest (including, no registration to the ---- extent, interest at the Default Rate) on Bid Loans made by such Designated Bid Lender, (ii) late charges with respect to Bid Loans made by such Designated Bid Lender that are not paid when due, and (iii) compensatory amounts payable by the Borrower in respect of Bid Loans made by such Designated Bid Lender that are paid prior to the last day of the Bid Rate Interest Period applicable thereto; and all other amounts payable by the Borrower hereunder, under any other Loan Document or processing fee under the Co-Lender Agreement shall be payable in connection with any assignment by W▇▇▇▇ Fargodetermined as if such Designated Bid Lender's Designating Bank had not made such designation.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank (including the Issuing Bank) may, with the prior written consent of the Administrative Agent, Company (at all times other than during the L/C Issuer and the Swingline Lender, and in the case existence of an assignment Event of Revolving Loans, Holdings (Default) which in each case consent of the Company shall not be unreasonably withheld)withheld and written consent of the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company or the Agent shall be required in connection with any assignment and delegation by the Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an “"Assignee”") all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Company and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender Bank and the Assignee; (Cii) such Bank and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit "E" ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section Subsection 11.08(a)), Holdings ) the Company shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender Bank has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender Bank (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such LenderBank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, the originating Bank shall remain a Bank for all purposes hereof and the other Loan Documents to which such originating Bank is a party, and the Participant may not become a Bank for purposes hereof or for any other of the Loan Documents, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdingsthe Company, the L/C Issuer, the Swingline Lender Issuing Bank and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.0111.
01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant's rights against the granting Bank in respect of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Bank), and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" or "secret" by the Company and provided to it by the Company or any of its Subsidiaries, or by the Agent on such Company's or Subsidiary's behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Bank; provided, however, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank's independent auditors and other professional advisors; (G) to any Affiliate of such Bank, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Notes held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR '203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Each Lender may, with the written consent may assign any of the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving its Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the its L/C Obligations and the other rights and obligations Obligations hereunder (but only with the consent of such Lender hereunderthe Administrative Agent, and in the case of an L/C Obligation, the applicable Letter of Credit Issuer, with respect to Swing Line Loans, the Swing Line Lender, and with respect to Daylight Overdraft Loans, the Daylight Overdraft Bank to one or more commercial banks or other Persons not Affiliates of the Borrower (each, an “Assignee”) which is an Eligible Assignee; provided, however, that that
(i) no written consent of Holdings shall be required during except to the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and extent the Administrative Agent before entering into (and the applicable Letter of Credit Issuer, in the case of a Letter of Credit) shall otherwise consent, any such assignment shall be (A) if a partial assignment; , in an amount at least equal to $5,000,000 or (iiiB) except in connection with if an assignment of all of a Lender’s Obligations, a lesser amount;
(ii) each such assignment by a Lender of its Loans, or L/C Obligations shall be made in such manner so that the same portion of its Loans, and L/C Obligations is assigned to the respective Assignee; and
(iii) upon each such assignment, the assigning Lender and Assignee shall deliver to the Borrower, the Administrative Agent and the Letter of Credit Issuers a Notice of Assignment in the form of Exhibit K hereto, and the assigning Lender shall pay a $3,500 recordation fee to the Administrative Agent. Upon execution and delivery by the assigning Lender and the Assignee to the Borrower, the Administrative Agent and the Letter of Credit Issuers of such Notice of Assignment, and upon consent thereto by the Administrative Agent and the applicable Letter of Credit Issuer to the extent required above, the Assignee shall have, to the extent of such assignment (unless otherwise consented to by the Administrative Agent), the obligations, rights and obligations with respect benefits of a Lender hereunder holding the Loans and, if applicable, L/C Obligations (or portions thereof) assigned to its Commitment, it and specified in such Notice of Assignment (in addition to the Loans and L/C Obligations, any if any, theretofore held by such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (ivassignee) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interestsassigning Lender shall, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and to the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice extent of such assignment, together with payment instructions, addresses and related information with respect to be released from the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iiior portion(s) thereof) so assigned.
(b) A Lender may (but only with the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date consent of the Assignment and Acceptance. The CommitmentAdministrative Agent and, Loans and in the case of an L/C Obligations allocated to each Assignee shall reduce Obligation, the Commitment, Loans and L/C Obligations applicable Letter of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Credit Issuer, the Swingline Lender and Holdings each such consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note not to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(dunreasonably withheld or delayed) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender L/C Obligations and the any other interests of that such Lender (the “originating Lender”) hereunder and under the other Loan Documents; Documents provided, however, that (i) the originating such Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent Borrower 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 (iv) no such Lender shall not transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent relates to the principal amount of any Loans, the Face Amount of any Letters of Credit, the rate of interest to be charged with respect to any Loans or L/C Obligations, any fees payable to a Lender under this Agreement or the extension of the Lenders as described in the first proviso to Section 11.01Expiration Date. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and except that, if all amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon by the occurrence of an Event of Default, each Participant Borrower hereunder 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 determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementhad not sold such participation.
(ec) Notwithstanding any other provision in this Agreement, any Lender may without the consent of the Administrative Agent, any Letter of Credit Issuer, or the Borrower, at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Uncommitted Revolving Credit Agreement (Tesoro Corp /New/)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of the Administrative AgentAgents, the L/C Issuer and the Swingline LenderCompany, and in the case of an assignment of Revolving Loans, Holdings (which in each case consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “"Assignee”") all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum amount of $5,000,000; provided, however, that (i) no written consent a Canadian Bank will assign only to another Canadian Bank capable of Holdings shall be required during making loans in Canadian Dollars and Dollars in Canada, and a US Bank will assign only to another bank capable of making loans in Dollars in the existence of a Default or an Event of DefaultUnited States; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings applicable Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the applicable Borrower and the Administrative Agent by such Lender Bank and the Assignee; (CB) such Bank and its Assignee shall have delivered to the applicable Borrower and the Agent an Assignment 86 -80- and Acceptance in the form of Exhibit D ("Assignment and Acceptance") and (c) the assignor Lender Bank or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.3,500;
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that Lender Bank and the other interests of that Lender Bank (the “"originating Lender”Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent Agents shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender’s Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 11.0111.
01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(d) Notwithstanding the provisions of this Article XI, if there shall have occurred an Event of Default that is continuing, a Bank may make any assignment or sell participations to any bank, financial institution or commercial lender, whether an Eligible Assignee or not, and no consent shall be required therefor.
(e) Notwithstanding any other provision in this Agreement, any Lender US Bank may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations in favour of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or US Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Zemex Corp)
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of the Administrative Company, the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings Issuing Bank (which in each case consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, all or any ratable part fraction of allits Commitment and outstanding Committed Loans in a minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $25,000,000, in the amount of its Commitment.
(ii) Any Lender may without the prior consent of the LoansCompany assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment, the L/C Obligations .
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and the other rights and obligations of such Lender hereunderany note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iiv) no written consent of Holdings Any Lender, if so requested by the Company under Section 5.09, shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender assign to an another Eligible Assignee that is its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may assign any Bid Loans made by it hereunder except to another Lender or an Affiliate to any other Person to which it is also assigning all or a fraction of such assigning Lender or within the same “family of funds” as such assigning Lenderits Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i).
(b) No assignment shall become effective, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Company and the Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal entitled to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such each Lender in connection with the interest interests so assigned by such Lender to an Assignee Assignee, until (Ai) such Lender and its such Assignee shall have delivered to Holdings and the Administrative Agent executed an Assignment and Acceptance Assumption Agreement substantially in the form of Exhibit E (“Assignment 12.08(b) and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to such Assignee shall have been given to the Company and the Agent by such Lender and such Assignee, in substantially the form of the Attachment A to Exhibit 12.08 (a "Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the AssigneeAssignment"); (Cii) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 shall have been paid to the Agent by the assignor Lender or the Assignee; and (it being understood that with respect iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignmentsin clauses (i) and (Dii) the Administrative Agent, Holdingsor (B) if earlier, the L/C Issuer Agent has notified the assignor Lender and the Swingline Lender each shall have provided any required consent to such assignment Assignee of its receipt of the items mentioned in accordance with this Section 11.08(a). In connection with any clauses (i) and (ii) and that it has acknowledged the assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment countersigning the Notice of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline LoansAssignment.
(bc) From and after the effective date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received of any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing feeassignment hereunder, (i) the Assignee thereunder shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssignee by the assignor Lender, shall have the rights and obligations of a Lender hereunder and under the each other Loan DocumentsDocument, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shallLender, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptancethe Assignee, relinquish its rights and shall be released from its future obligations hereunder and under the each other Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Document.
(d) Any Subject to Section 12.08(e), any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates (each of Holdings (such Persons being herein called a “"Participant”") participating interests in any of the Loans, the its Commitment of that Lender and the or other interests of that such Lender (the “originating Lender”) hereunder and under the other Loan Documentshereunder; provided, however, that that
(i) the originating Lender’s no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under this Agreement shall remain unchanged, any other Loan Document;
(ii) the originating such Lender shall remain solely responsible for the performance of its Commitment and such other obligations, ;
(iii) Holdingsthe Company, the L/C IssuerAgent, the Swingline Lender and the Administrative Agent Issuing Bank shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender’s 's rights and obligations under this Agreement and the each other Loan Documents, and Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender shall transfer to take or grant refrain from taking any participating interest action hereunder or under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent that such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at agree with any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of Participant that such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Company at all times other than during the existence of an Event of Default and the Agent, the L/C Issuer Swing Line Lender and the Swingline LenderIssuer, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”"ASSIGNEE") all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, howeverin a minimum amount of $5,000,000 or, if less, the total amount of such Lender's outstanding Loans and/or Commitments (provided that (ix) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or Company, the Administrative Agent, the L/C Issuer Swing Line Lender or the Swingline Lender Issuer shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within Lender; PROVIDED, HOWEVER, that the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another LenderCompany, the Lender seeking to assign its interests hereunder shall consult with Holdings Agent and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Co-Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company, the Agent and the Co-Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of EXHIBIT D ("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder (including without limitation any obligations under SECTION 10.10) 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) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and and, if required, provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section SUBSECTION 11.08(a)), Holdings the Company shall execute and deliver to the Administrative Agent any new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and . Immediately upon each Assignee's making its processing fee payment under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Assignment and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect toAcceptance, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 be amended to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreementextent, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 but only to the contraryextent, no registration or processing fee necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall be payable in connection with any assignment by W▇▇▇▇ Fargoreduce such Commitments of the assigning Lender PRO TANTO.
Appears in 1 contract
Sources: Credit Agreement (Regis Corp)
Assignments, Participations, etc. (a) Any Lender may, with (A) the written consent of Borrower, which consent shall not be unreasonably withheld (provided that such consent shall not be required (i) at any time that an Event of Default exists, (ii) in connection with an assignment to a Related Fund, to any other Lender or to an Affiliate of any Lender or (iii) in connection with an assignment by Antares prior to completion of the Administrative primary syndication), and (B) the written consent of Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of provided that the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, that (i) no written consent of Holdings the Agent or Borrower shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an “Assignee”) all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lenderany part of, the Lender seeking to assign its interests hereunder shall consult with Holdings Loans and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s other rights and obligations with respect of such Lender hereunder, in a minimum amount of $5,000,000 (or such lesser amount to which Agent, in its Commitmentsole discretion, Loans and L/C Obligationsmay agree) or, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loansif less, the Commitment and the other interests, rights and obligations hereunder entire Loan(s) of such assigning Lender; and provided furtherprovided, however, that Holdings the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form and substance reasonably satisfactory to Agent, such Lender and its Assignee (an “Assignment and Acceptance”); and
(Ciii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such provided no processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any be required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only paid in connection with an assignment transaction involving by a Lender to an assignment Eligible Assignee that is an Affiliate of all such Lender or in connection with the primary syndication of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, ; and
(ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 .
(c) Subject to the extent such rights relate provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the time prior to the effective date Agent in respect of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated this Agreement shall be deemed to each Assignee shall reduce be amended to the Commitmentextent, Loans and L/C Obligations but only to the extent, necessary to reflect the addition of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender Loans and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Documents; provided, however, that that:
(i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, and ; and
(iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.019.1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall not 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 any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(e) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time pledge or (i) assign a security interest in all or any portion of its rights under this Agreement the Loans held by it to secure obligations any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided , (ii) in the case of any Lender that no is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such pledge or assignment shall release Loans) to the trustee under any indenture to which such Lender from any is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or substitute any pledged Loans to the extent of such pledgee payment. No such assignment or assignee for such pledge shall release the assigning Lender as a party heretofrom its obligations hereunder.
(f) Notwithstanding The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and principal amount of the Loans owing to each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any provision Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in this Section 11.08 the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the contrarydesignated assignee and, no registration or processing fee if applicable, assignor, and the old Notes shall be payable in connection returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any assignment by W▇▇▇▇ Fargoentry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments, Participations, etc. No Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligations except as permitted by clauses (a) or (b) below.
(a) Any Lender maymay (subject to the provisions of this section, in accordance with applicable law, in the ordinary course of its business, and at any time) sell to one or more Persons (each a “Participant”) participating interests in its portion of the Obligations. The selling Lender remains a “Lender” under the Loan Documents, the Participant does not become a “Lender” under the Loan Documents, and the selling Lender’s obligations under the Loan Documents remain unchanged. The selling Lender remains solely responsible for the performance of its obligations and remains the holder of its share of the outstanding Loan for all purposes under the Loan Documents. The Loan Parties and Administrative Agent shall continue to deal solely and directly with the selling Lender in connection with that Lender’s rights and obligations under the Loan Documents, and each Lender must retain the sole right and responsibility to enforce due obligations of the Loan Parties. Participants have no rights under the Loan Documents except certain voting rights as provided below. Subject to the following, each Lender may obtain (on behalf of its Participants) the benefits of Article XII with respect to all participations in its part of the Obligations outstanding from time to time so long as no Loan Party is obligated to pay any amount in excess of the amount that would be due to that Lender under Article XII calculated as though no participations have been made. No Lender may sell any participating interest under which the Participant has any rights to approve any amendment, modification, or waiver of any Loan Document except as to matters in Section 12.01.
(b) Each Lender may make assignments to the Federal Reserve Bank. Each Lender may upon the written consent of Administrative Agent and, if no Event of Default exists, with the Administrative Agent, the L/C Issuer and the Swingline Lender, and in the case consent of an assignment of Revolving Loans, Holdings Borrower (which in each case consent shall not be unreasonably withheld), at any time withheld or delayed) assign and delegate to one or more Eligible Assignees assignees (each an “Assignee”) all, all or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other its rights and obligations of such Lender hereunder; provided, however, that under the Loan Documents so long as (i) no written consent the assignor Lender and Assignee execute and deliver to Administrative Agent an assignment and assumption agreement in substantially the form of Holdings shall be required during Exhibit E (an “Assignment and Acceptance Agreement”) and pay to Administrative Agent a processing fee in the existence of a Default or an Event of Default; amount set forth on Appendix I, (ii) no written consent the Assignee acquires an identical percentage interest in the Commitment of Holdings or the Administrative Agent, assignor Lender and an identical percentage of the L/C Issuer or interests in the Swingline Lender shall be required in connection with any assignment and delegation outstanding Loan held by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning assignor Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with the case of an assignment to another Lender or an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligationsunder this Agreement, any such partial assignment to an Eligible Assignee that is not a Lender hereunder shall be in an amount equal to $5,000,000 or greater than an integral multiple of $1,000,000; 1,000,000 in excess thereof, and (iv) each such partial assignment shall be of a ratable part the conditions (including, without limitation, minimum amounts of the Loans, Commitment that may be assigned or that must be retained) for that assignment set forth in the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an applicable Assignment and Acceptance Agreement substantially are satisfied. The “Effective Date” in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of each Assignment and Acceptance attached as Schedule 1 Agreement must (unless a shorter period is agreeable to the Assignment Borrower and Acceptance, shall have been given to Holdings Administrative Agent) be at least five (5) Domestic Business Days after it is executed and the Administrative Agent delivered by such Lender and the Assignee; (C) the assignor Lender or and Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood and Borrower for acceptance. Once that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment Agreement is accepted by Administrative Agent and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From Borrower, then, from and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, Effective Date stated in it (i) the Assignee thereunder shall be automatically becomes a party hereto to this Agreement and, to the extent provided in that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have has the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shallLender, to the extent provided in 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 and be is released from its obligations to fund Borrowings under this Agreement and its reimbursement obligations under this Agreement and, in the case of an Assignment and Acceptance Agreement covering all of the remaining portion of the assignor Lender’s rights and obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 ceases to be a party to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The CommitmentLoan Documents, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(ciii) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings Borrower shall execute and deliver to the Administrative Agent any new Note requested by such assignor Lender and Assignee evidencing such Assignee’s assigned Loans and Commitment andthe appropriate Notes in accordance with this Agreement following the transfer, if (iv) upon delivery of the Notes under clause (iii) preceding, the assignor Lender has retained a portion of its Loans and its Commitment, replacement shall return to Borrower all Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note previously delivered to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 (v) Schedule 2.01 is automatically deemed to be amended to reflect the name, address, telecopy number, and Commitment of Assignee and the remaining Commitment (if any) of the assignor Lender, and Administrative Agent shall prepare and circulate to the Loan Parties and the Lenders an amended Schedule 2.01 reflecting those changes.
(ec) Notwithstanding any other provision Administrative Agent, acting for this purpose as an agent of Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses, the Commitments, and the principal amount of the Loans of each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Administrative Agent, the Issuing Lender 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, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 notwithstanding notice to the contrary, no registration or processing fee . The Register shall be payable in connection with available for inspection by Borrower, the Issuing Lender and any assignment by W▇▇▇▇ FargoLender at any reasonable time and from time to time upon reasonable prior notice.
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Sources: Credit Agreement (Midstates Petroleum Company, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower (other than during the existence of a Default or Event of Default in which event the Borrower’s consent shall not be required) and the Agent, the L/C Issuer and the Swingline Lenderwhich consent, and in the case of an assignment of Revolving Loans, Holdings (which in each case case, shall not be unreasonably withheldwithheld (which consent of the Borrower and the Agent shall not be required if the Eligible Assignee is an Affiliate of such Lender or is another Lender), provided that such assignment shall not result in increased costs to the Borrower pursuant to Section 2.09, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Term Loan Notes and the other rights and obligations of such Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum amount of not less than $1,000,000 and, after giving effect to such assignment, the assigning Lender’s or selling Lender’s Proportionate Share of the Term Loan Notes shall equal an amount that it not less than $2,000,000, in each case, unless otherwise agreed in writing by the Borrower and the Agent; provided, however, that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings Borrower and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit F (“Assignment and Acceptance”) together with any Term Loan Note subject to such assignment; and (iii) the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans4,000.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Transaction Documents other than its obligations to maintain confidential information set forth in Section 9.11(e).
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrower shall execute and deliver to the Agent, a new Term Loan Note evidencing such Assignee’s assigned Proportionate Share of the Term Loan and, if the assignor Lender has retained a portion thereof, a replacement Term Loan Note in the principal amount of the Proportionate Share of the Term Loan retained by the assignor Lender (such Term Loan Note to be in exchange for, but not in payment of, the Term Loan Note held by such Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date Proportionate Share of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any)Term Loan.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Holdings the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender Term Loans and the other interests of that Lender (the “originating Originating Lender”) hereunder and under the other Loan Transaction Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative 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, Transaction Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender; and provided further that, and it is hereby agreed that, the Borrower shall not be obligated to make any greater payment or otherwise incur any greater cost or liability under Section 2.09 than had no such sale of a participating interest occurred.
(e) Each Lender agrees to maintain the confidentiality of all information identified as “confidential” by the Credit Party and provided to it by the Credit Party, or by the Agent on the Credit Party’s behalf, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than the Credit Party or one of its affiliates; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender’s independent auditors and other professional advisors. If the Agent or any Lender discloses any such confidential information pursuant to the provisions of the Lenders as described in the first proviso to Section 11.01. In the case of any such participationimmediately proceeding proviso, the Agent or such Lender shall seek to obtain assurance that confidential treatment will be accorded to such confidential information; provided, however, that neither the Agent nor any Lender shall have any liability for the failure to obtain such confidential treatment. Notwithstanding the foregoing, the Credit Party authorizes each Lender to disclose to any Participant shall be entitled or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender’s possession concerning a Borrower or the Guarantor which has been delivered to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under Agent or the Lenders pursuant to this Agreement are due and unpaid, or shall have which has 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 delivered to the same extent as if Agent or the amount Lenders by the Borrower or the Guarantor in connection with the Lenders’ credit evaluation of its participating interest were owing directly the Borrower and the Guarantor prior to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in entering into this Agreement, 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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee participant or assignee for such Lender as (or prospective participant or assignee) agrees in writing to be bound by a party heretoconfidentiality agreement similar to the provisions of this Section 9.11(e).
(f) Notwithstanding any other provision contained in this Section 11.08 Agreement or any other Transaction Document to the contrary, no registration any Lender may assign all or processing fee shall be payable in connection with any assignment portion of its Proportionate Share of the Term Loan Notes held by W▇▇▇▇ Fargo.it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank
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Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower at all times other than during the existence of a Default or an Event of Default, and the written consent of the Agent, which consents of the L/C Issuer Borrower and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case Agent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Borrower or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning LenderLender hereunder, in a minimum amount of $5,000,000; and provided furtherprovided, however, that Holdings (i) the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of Exhibit K ("Assignment and Acceptance") and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 3,500, (it being understood that ii) if the assignor Lender or any of its Affiliates is a Specified Swap Provider with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one any Specified Swap Contract, such Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of assign all of its Commitment interest in the Loans and Loansthe Commitments to an Assignee unless such Assignee, or an Affiliate of such Assignee, shall also assume all obligations of such assignor Lender or Affiliate with respect to all such Specified Swap Contracts, and (iii) for purposes of clarification, if the Assignment and Acceptance may Borrower is entitled to consent to any assignment, it shall be appropriately modified deemed to include an assignment and delegation be reasonable for the Borrower to withhold such consent if the proposed assignee is a Person primarily engaged in, a parent corporation or Subsidiary of, or under common control with a Person primarily engaged in the manufacture of its Swingline Commitment and any outstanding Swingline Loansrailroad locomotives.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, 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) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that neither Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the Administrative Agentprovisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section, or (iv) to an SPC in accordance with the provisions of subsection (g) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnified Persons) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Issuer Obligations and in Swing Line Loans) at the Swingline Lender, and time owing to it); provided that (i) except in the case of an assignment of Revolving Loans, Holdings (which in each case shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, the entire remaining amount of the Loans, the Commitment, the L/C Obligations assigning Lender’s Commitment and the other rights and obligations Loans at the time owing to it or in the case of such Lender hereunder; provided, however, that (i) no written consent of Holdings shall be required during the existence of an assignment to a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative Agent, the L/C Issuer or the Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning a Lender or within the same “family an Approved Fund (as defined in subsection (g) of funds” as such assigning Lender, provided that if the proposed Assignee is another this Section) with respect to a Lender, the Lender seeking aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to assign its interests hereunder shall consult each such assignment, determined as of the date the Assignment and Acceptance with Holdings and respect to such assignment is delivered to the Administrative Agent before entering into such assignmentor, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $10,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (which consents shall not be unreasonably withheld or delayed); (iiiii) except in connection with each partial assignment shall be made as an assignment of a proportionate part of all of a the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii) any assignment of a Commitment must be approved by the Administrative Agent, each Issuing Lender, the Swing Line Lender and, so long as no Event of Default has occurred and is continuing, the Company (which approvals shall not be unreasonably withheld or delayed) unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee), an Affiliate of the assigning Lender or an Approved Fund; (iv) except for any assignment to a Swiss Qualifying Lender, an assignment of a Commitment or of any Loan to B&S AG must be approved by B&S AG (which approval shall not be unreasonably withheld or delayed if, after such assignment or transfer, B&S AG would be in compliance with the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank Rule), except that no consent of B&S AG shall be required if an Event of Default has occurred and is continuing so long as after such assignment, B&S AG would be in compliance with the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank Rule; and (v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance and, unless the Eligible Assignee thereunder is an Affiliate of the assigning Lender, a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its Commitmentobligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.01, 4.03, 4.04, 12.04 and 12.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Payment 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 Commitments of, and principal amounts of the Loans and L/C ObligationsObligations owing to, any such assignment each Lender pursuant to an Eligible Assignee that the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is not 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 equal available for inspection by the Borrowers at any reasonable time and from time to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of the Loanstime upon reasonable prior notice, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided further, however, that Holdings and the Administrative Agent will provide a copy of the Register to a Borrower upon such Borrower’s reasonable request. In addition, at any time that a request for a consent for a material or other substantive change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register.
(d) Any Lender may at any time, without the consent of, or notice to, the Company or the Administrative Agent (but subject to clause (iv) below, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; (iii) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings and the Administrative Agent by such Lender and the Assignee; (C) the assignor Lender or Assignee shall have paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and (iv) except for any participation sold to a Swiss Qualifying Lender, a participation of a Commitment or of any Loan to B&S AG must be approved by B&S AG (which approval shall not be unreasonably withheld or delayed if, after such assignment or transfer, B&S AG would be in compliance with the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank Rule), except that no consent of B&S AG shall be required if an Event of Default has occurred and is continuing so long as after such participation, B&S AG would be in compliance with the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank Rule. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall transfer or grant any participating interest under which retain the Participant has rights sole right to enforce this Agreement and to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso clause (a) of Section 12.01 that directly affects such Participant. Subject to Section 11.01. In the case subsection (e) of any such participationthis Section, the Company agrees that each Participant shall be entitled to the benefit benefits of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and 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 4.04 to the same extent as if the amount of its participating interest it were owing directly to it as a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.10 as though it were a Lender, provided such Participant agrees to be subject to Sections 2.16 and 12.09 as though it were a Lender. A Participant shall not be entitled to receive any greater payment under this AgreementSection 4.01 or 4.03 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.01 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 10.10 as though it were a Lender.
(e) Notwithstanding any other provision in this Agreement, any Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; 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.
(f) Notwithstanding any provision in this Section 11.08 to As used herein, the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.following terms have the following meanings:
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Borrower (at all times other than during the existence of an Event of Default) and the Agent, which consent of the L/C Issuer Borrower and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case Agent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Borrower or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender or within the same “family of funds” as such assigning which is an existing Lender) (each an "ASSIGNEE") all, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, or any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment Commitments and the other interests, rights and obligations hereunder of such assigning LenderLender hereunder, in a minimum amount of $5,000,000; and provided furtherPROVIDED, howeverHOWEVER, that Holdings the Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that except with respect to an assignment assignments to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(aAffiliates). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent with respect thereto and received any other consents required under this Section 11.08to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s its receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee fee, (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent it consents to such assignment in accordance with Section 11.08(aand to the extent required by SECTION 12.8(a)), Holdings the Borrower shall execute and deliver to the Administrative Agent any Agent, new Note requested by such Assignee Notes evidencing such Assignee’s 's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by in the assignor Lender evidencing principal amount of the Loans and Commitment retained by the assignor Lender (such Note Notes to be in exchange for, but not in payment of, the Note Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, if any)this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO.
(d) Any Lender or Designated Bidder may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Holdings the Borrower (a “Participant”"PARTICIPANT") participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender or Designated Bidder (the “"originating Lender”") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s 's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso FIRST PROVISO to Section 11.01SECTION 12.1 and (v) no Participant shall, without the written consent of the Borrower (not to be unreasonably withheld or delayed) be a direct competitor (or an Affiliate thereof) of the Borrower. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01SECTIONS 4.1, 4.03 4.3 and 11.05 12.5 as though it were also a Lender or Designated Bidder (as the case may be) hereunder, and except thatand, 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 or Designated Bidder (as the case may be) under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender or Designated Bidder may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and the Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Administrative Company (unless an Event of Default exists) and the Agent, the L/C Issuer and the Swingline Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings Company or the Administrative Agent, the L/C Issuer or the Swingline Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender hereunder, in a minimum amount of $5,000,000 (or, if less, all of such Lender's remaining rights and obligations hereunder); and provided further, however, that Holdings the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (Ai) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Company and the Administrative Agent by such Lender and the Assignee; (Cii) such Lender and its Assignee shall have delivered to the Company and the Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, and provided its consent (and received the consent of the Company, if applicable) with respect thereto and received any other consents required under this Section 11.08) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings the Company (a “"Participant”") participating interests in any Loans, the Commitment of that such Lender and the other interests of that such Lender (the “"originating Lender”") hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01the
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.013.1, 4.03 3.3 and 11.05 10.5 as though it were also a Lender hereunder, and 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.
(ed) Notwithstanding any other provision in this Agreement, any Lender may at any time pledge or assign create a security interest in in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations and any Note held by it in favor of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or assignment shall release such Lender from security interest in any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretomanner permitted under applicable law.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Truserv Corp)
Assignments, Participations, etc. (a) Any Lender maymay at any time, with the written consent of the Administrative AgentBorrower, the L/C Issuer Agent and the Swingline each Issuing Lender, and in the case of an assignment of Revolving Loans, Holdings (which in each case consents shall not be unreasonably withheld)withheld except during the existence of an Event of Default, at any time assign and delegate to one or more Eligible Assignees (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, however, provided that (i) no written consent of Holdings shall be required during the existence of a Default or an Event of Default; (ii) no written consent of Holdings or the Administrative AgentBorrower, the L/C Issuer Agent or the Swingline either Issuing Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is another a Lender or an Affiliate of such assigning Lender Lender) (each an "Assignee") all, or within the same “family of funds” as such assigning Lender, provided that if the proposed Assignee is another Lender, the Lender seeking to assign its interests hereunder shall consult with Holdings and the Administrative Agent before entering into such assignment; (iii) except in connection with an assignment of all of a Lender’s rights and obligations with respect to its Commitment, Loans and L/C Obligations, any such assignment to an Eligible Assignee that is not a Lender hereunder shall be equal to or greater than $1,000,000; and (iv) each such partial assignment shall be of a ratable part of all, of the Loans, interests in Letters of Credit, the Commitment and the other interests, rights and obligations hereunder of such assigning Lender; and provided furtherLender hereunder, howeverin a minimum amount of $10,000,000 or, that Holdings if less, all of such Loans, interests in Letters of Credit, the Commitment and the Administrative other rights and obligations of such Lender hereunder; provided that (i) the Borrower, the Agent and each Issuing Lender may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (A) such Lender and its Assignee shall have delivered to Holdings and the Administrative Agent an Assignment and Acceptance Agreement substantially in the form of Exhibit E (“Assignment and Acceptance”), together with any Note or Notes subject to such assignment; (B) a written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, in substantially the form of the Notice of Assignment and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall have been given to Holdings the Borrower and the Administrative Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance; and (C) the assignor Lender or Assignee shall have has paid to the Administrative Agent a processing fee in the amount of $3,500 (it being understood that with respect to an assignment to more than one Eligible Assignee within the same “family of funds” or by more than one Lender within the same “family of funds” to a single Eligible Assignee, only one such processing fee is payable for the series of simultaneous assignments) and (D) the Administrative Agent, Holdings, the L/C Issuer and the Swingline Lender each shall have provided any required consent to such assignment in accordance with this Section 11.08(a). In connection with any assignment by W▇▇▇▇ Fargo, its Swingline Commitment may be assigned in whole (and not part) and only in connection with an assignment transaction involving an assignment of all of its Commitment and Loans, and the Assignment and Acceptance may be appropriately modified to include an assignment and delegation of its Swingline Commitment and any outstanding Swingline Loans3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the Administrative Agent it has received (and, if required, provided its consent with respect thereto and received any other consents required under this Section 11.08) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, 81 shall have the rights and obligations of a Lender under the Loan Documents, and (ii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments, Loans and L/C Obligations arising therefrom, and (iii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents; provided, however, that the assignor Lender shall not relinquish its rights under Article IV or under Section 11.04 and Section 11.05 to the extent such rights relate to the time prior to the effective date of the Assignment and Acceptance. The Commitment, Loans and L/C Obligations allocated to each Assignee shall reduce the Commitment, Loans and L/C Obligations of the assigning Lender pro tanto.
(c) Within five (5) Business Days after Holding’s receipt of notice by the Administrative Agent that it has received (and, if necessary, consented to) an executed Assignment and Acceptance and payment of the processing fee (and provided that the L/C Issuer, the Swingline Lender and Holdings each consent to such assignment in accordance with Section 11.08(a)), Holdings shall execute and deliver to the Administrative Agent any new Note requested by such Assignee evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes as requested by the assignor Lender evidencing the Loans and Commitment retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender, if any).
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Holdings (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) 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) Holdings, the L/C Issuer, the Swingline Lender and the Administrative Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights 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, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 11.01. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Lender hereunder, and except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, 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; 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.
(f) Notwithstanding any provision in this Section 11.08 to the contrary, no registration or processing fee shall be payable in connection with any assignment by W▇▇▇▇ Fargo.
Appears in 1 contract
Sources: Credit Agreement (Us Can Corp)