Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e): (i) Any Lender may with the prior consent of the (which consent will not be unreasonably withheld) and without the consent of the Company at any time assign to one or more Eligible Assignees all or any fraction of its Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(i), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loans, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $10,000,000, in the amount of its Commitment. (ii) Any Lender may without the consent of the Company assign to another Lender all or any fraction of its Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(ii), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loans, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $10,000,000, 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 promissory 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 outstanding Term Loans and its entire Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(iv), participations in L/C Obligations) at the time owing to it. (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 Loans (including for purposes of this Section 12.08(a)(v), participations in L/C Obligations, and excluding Bid Loans) at the time owing to it 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 Table of Contents 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) (including whether such Loan to be assigned is a Committed Loan or Term Loan, or both) 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(b) (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. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitments assigned. In the case of any assignment of a Lender’s Committed Loans and/or Commitment, such assignment shall be null and void unless such assignment includes an assignment of each of such Lender’s Committed Loans and Commitment on an equal pro rata basis. (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 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. Any Person who becomes a Lender hereunder by an assignment hereunder on or after the date of the Seventh Amendment and any Lender who assigns an interest in the Commitments and the Committed Loans, on one hand, or the Term Loans, on the other, in a manner other than as an equal pro rata assignment of each, after such date shall, by virtue of entering into such assignment, waive any claim that any amendments to this Agreement effected by the Seventh Amendment require consent of all Lenders as opposed to the Required Lenders. (d) Subject to Section 12.08(e), any Lender may at any time sell to one or more financial institutions or other Persons (each of such Persons being herein called a “Participant”) participating interests in any of the Loans (including such Lender’s participations in L/C Obligations) owing to it, its Commitment or other interests of such Lender hereunder ; provided, however, that: (i) no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under any other Loan Document; (ii) such Lender shall remain solely responsible for the performance of its Commitment and such other obligations; Table of Contents (iii) the Company, the Agent, and the Issuing Bank shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and each other Loan Document; and (iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s consent, take any action of the type described in Section 12.02. The Company acknowledges and agrees that each Participant, for purposes of Sections 4.05, 4.06, 5.02, 5.03, 5.05, 5.06 or 12.06, shall be considered a Lender; provided, however, that for purposes of Sections 4.05, 5.02, 5.03, 5.05 and 5.06, no Participant shall be entitled to receive any payment or compensation in excess of that to which such Participant’s selling Lender would have been entitled with respect to the amount of such Participant’s participation interest if such Lender had not sold such participation interest. (e) Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to Section 12.08(a)(i), (ii) or (iv), Bank of America may, upon thirty (30) days’ notice to the Company and the Lenders, resign as an Issuing Bank. In the event of any such resignation as Issuing Bank, the Company shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as Issuing Bank. If Bank of America resigns Issuing Bank, it shall retain all the rights and obligations of an Issuing Bank hereunder with respect to all Letters of Credit Issued by it and outstanding as of the effective date of its resignation as an Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Lenders to make Committed Loans consisting of Reference Rate Loans or fund risk participations in unreimbursed drawings pursuant to Section 3.03(c)).
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b11.08(b) and 12.08(e11.08(e):
(i) Any Lender may with the prior consent of the Company and the Agent (which consent consents will not be unreasonably withheld) withheld and without the which consent of the Company shall not be required if a Default or Event of Default exists) at any time assign to one or more Eligible Assignees all or any fraction of its Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(i), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loansof, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $10,000,000, 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 Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(ii), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loans, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its the Commitment is less than $10,000,0005,000,000, 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 promissory 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 5.094.09, ------------ shall assign to another Eligible Assignee its outstanding Term Loans and its entire Commitment and all outstanding Committed Loans (including for purposes of this Section 12.08(a)(iv), participations in L/C Obligations) at the time owing to itLoans.
(v) Except as provided in Section 12.08(a)(iii11.08(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 (including for purposes of this Section 12.08(a)(v), participations in L/C Obligations, and excluding Bid Loans) at the time owing to it pursuant to Section 12.08(a)(i11.08(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 Table of Contents 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) (including whether such Loan to be assigned is a Committed Loan or Term Loan, or both11.08(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(b11.08(b) (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. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitments assigned. In the case of any assignment of a Lender’s Committed Loans and/or Commitment, such assignment shall be null and void unless such assignment includes an assignment of each of such Lender’s Committed Loans and Commitment on an equal pro rata basis.
(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 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. Any Person who becomes a Lender hereunder by an assignment hereunder on or after the date of the Seventh Amendment and any Lender who assigns an interest in the Commitments and the Committed Loans, on one hand, or the Term Loans, on the other, in a manner other than as an equal pro rata assignment of each, after such date shall, by virtue of entering into such assignment, waive any claim that any amendments to this Agreement effected by the Seventh Amendment require consent of all Lenders as opposed to the Required Lenders.
(d) Subject to Section 12.08(e11.08(e), any Lender may at any time sell to one or ---------------- more financial institutions or other Persons (each of such Persons being herein called a “"Participant”") participating interests in any of the Loans (including such Lender’s participations in L/C Obligations) owing to itLoans, its ----------- Commitment or other interests of such Lender hereunder hereunder; provided, however, that:that -----------------
(i) no participation contemplated in this Section 12.08(d11.08(d) shall ---------------- relieve such Lender from its Commitment or its other obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for the performance of its Commitment and such other obligations; Table of Contents;
(iii) the Company, the Agent, Company and the Issuing Bank Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and each other Loan Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s 's consent, take any action of the type described in Section 12.0211.02. ------------- The Company acknowledges and agrees that each Participant, for purposes of Sections 3.05, 3.06, 4.02, 4.03, 4.05, 4.06, 5.02, 5.03, 5.05, 5.06 4.06 or 12.0611.06, shall be considered a ------------------------------------------- ----- Lender; provided, however, that for purposes of Sections 4.053.05, 5.024.02, 5.034.03, 5.05 4.05 -------- ------- ------------------------------- and 5.064.06, no Participant shall be entitled to receive any payment or ---- compensation in excess of that to which such Participant’s 's selling Lender would have been entitled with respect to the amount of such Participant’s 's participation interest if such Lender had not sold such participation interest.
(e) Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to Section 12.08(a)(i), (ii) or (iv), Bank of America may, upon thirty (30) days’ notice to the Company and the Lenders, resign as an Issuing Bank. In the event of any such resignation as Issuing Bank, the Company shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as Issuing Bank. If Bank of America resigns Issuing Bank, it shall retain all the rights and obligations of an Issuing Bank hereunder with respect to all Letters of Credit Issued by it and outstanding as of the effective date of its resignation as an Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Lenders to make Committed Loans consisting of Reference Rate Loans or fund risk participations in unreimbursed drawings pursuant to Section 3.03(c)).
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may with the prior consent of the Company, the Agent, and the Issuing Bank (which consent consents will not be unreasonably withheld) withheld and without the which consent of the Company shall not be required if a Default or Event of Default exists) at any time assign to one or more Eligible Assignees all or any fraction of its Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(i), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loansof, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $10,000,000, 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 Term Loans or its Commitment and outstanding Committed Loans (including for purposes of this Section 12.08(a)(ii), participations in L/C Obligations) at the time owing to it in a minimum amount of (x) in the case of Term Loans, $1,000,000 and in multiples of $1,000,000 in excess thereof and (y) in the case of its Commitments and outstanding Committed Loans, so long as no Default or Event of Default exists, $10,000,000 (or in a minimum amount of $5,000,000 if a Default or Event of Default exists) and in multiples of $1,000,000 in excess thereof or, if its the Commitment is less than $10,000,0005,000,000, 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 promissory 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 outstanding Term Loans and its entire Commitment and ---- all outstanding Committed Loans (including for purposes of this Section 12.08(a)(iv), participations in L/C Obligations) at the time owing to itLoans.
(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 (including for purposes of this Section 12.08(a)(v), participations in L/C Obligations, and excluding Bid Loans) at the time owing to it 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 Table of Contents 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) (including whether such Loan to be assigned is a Committed Loan or Term Loan, or both) 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(b) (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. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitments assigned. In the case of any assignment of a Lender’s Committed Loans and/or Commitment, such assignment shall be null and void unless such assignment includes an assignment of each of such Lender’s Committed Loans and Commitment on an equal pro rata basis.
(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 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. Any Person who becomes a Lender hereunder by an assignment hereunder on or after the date of the Seventh Amendment and any Lender who assigns an interest in the Commitments and the Committed Loans, on one hand, or the Term Loans, on the other, in a manner other than as an equal pro rata assignment of each, after such date shall, by virtue of entering into such assignment, waive any claim that any amendments to this Agreement effected by the Seventh Amendment require consent of all Lenders as opposed to the Required Lenders.
(d) Subject to Section 12.08(e), any Lender may at any time sell to one ---------------- or more financial institutions or other Persons (each of such Persons being herein called a “"Participant”") participating interests in any of the Loans (including such Lender’s participations in L/C Obligations) owing to itLoans, its ----------- Commitment or other interests of such Lender hereunder hereunder; provided, however, that:that -------- -------
(i) no participation contemplated in this Section 12.08(d) shall ---------------- relieve such Lender from its Commitment or its other obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for the performance of its Commitment and such other obligations; Table of Contents;
(iii) the Company, the Agent, and the Issuing Bank shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and each other Loan Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant’s 's consent, take any action of the type described in Section 12.02. ------------- The Company acknowledges and agrees that each Participant, for purposes of Sections 4.05, 4.06, 5.02, 5.03, 5.05, 5.06 or 12.06, shall be considered a ------------------------------------------- ----- Lender; provided, however, that for purposes of Sections 4.05, 5.02, 5.03, 5.05 -------- ------- ------------------------------- and 5.06, no Participant shall be entitled to receive any payment or ---- compensation in excess of that to which such Participant’s 's selling Lender would have been entitled with respect to the amount of such Participant’s 's participation interest if such Lender had not sold such participation interest.
(e) Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to Section 12.08(a)(i), (ii) or (iv), Bank of America may, upon thirty (30) days’ notice to the Company and the Lenders, resign as an Issuing Bank. In the event of any such resignation as Issuing Bank, the Company shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as Issuing Bank. If Bank of America resigns Issuing Bank, it shall retain all the rights and obligations of an Issuing Bank hereunder with respect to all Letters of Credit Issued by it and outstanding as of the effective date of its resignation as an Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Lenders to make Committed Loans consisting of Reference Rate Loans or fund risk participations in unreimbursed drawings pursuant to Section 3.03(c)).
Appears in 1 contract