Assignments; Participations. (a) Any Lender may make, carry or transfer Loans at, to or for the account of any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower. (b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder. (c) Any Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00). (d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower. (e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder. (f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7. (g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates. (h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction. (i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G).
Appears in 1 contract
Sources: Construction Loan and Security Agreement (Campus Crest Communities, Inc.)
Assignments; Participations. (a) Any Lender may make, carry or transfer Loans at, to or for the account of any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Five Million Dollars ($10,000,000.005,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Five Million Dollars ($10,000,000.005,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Five Million Dollars ($15,000,000.005,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Five Million Dollars ($15,000,000.005,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) )
(i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.1110.11(d). Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording administrative fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.1110.11(e), any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company Administrative Agent assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company Administrative Agent may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing LenderAdministrative Agent. In the event of any such resignation as the Issuing LenderAdministrative Agent, Borrower Lenders shall be entitled to appoint from among the Lenders a successor Issuing Lender Administrative Agent hereunder; provided, however, that no failure by Borrower Lenders to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company Administrative Agent as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G)Administrative Agent.
Appears in 1 contract
Sources: Construction Loan and Security Agreement (Bluerock Residential Growth REIT, Inc.)
Assignments; Participations. (a) Any Lender This Agreement shall be binding upon, and shall inure to the benefit of, the Borrowers, the Agent, the Banks and their respective successors and assigns, except that none of the Company, MacDermid Imaging, or any Eligible Subsidiary may make, carry assign or transfer Loans at, to its rights or for the account obligations hereunder. Each Bank may assign or transfer all or any part of any Loan, its Commitment, its Acquisition Commitment or its interest in any Letters of its branch offices or the office of an Affiliate of such Lender except Credit to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks another bank or other financial institutions (each institution or may sell a “Participant”) participating interests participation in all or any part of any Loan, its Commitment, its Acquisition Commitment or its interest in any Letters of Credit to another bank or financial institution, in each case upon written notice to the Obligations owing to such Lender; providedAgent and the Company, however, in which event (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, the case of an assignment or if any of the Commitments have been terminatedtransfer, the aggregate outstanding principal balance of Notes held by itassignee or transferee shall have, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of such assignment or transfer (unless otherwise provided therein), the same rights, benefits and obligations as such assignee or transferee would have if it were a participating interest granted Bank hereunder, and (ii) in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower the case of the sale of a participation, the participant shall have no rights under the Facility Documents and all amounts payable by any participation hereunder and, Borrower under Article 3 shall be determined as if requested by Administrative Agent, certify to Administrative Agent such Bank had not sold such participation. Each Bank that sells any such participation is permitted hereunder.
(c) shall deliver a notice to the Company and the Agent of such participation which shall set forth the participant and the amount of such participation. Any Lender may with agreement executed by such Bank in favor of the prior written participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action requiring the consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment Banks as set forth in such Assignment and Acceptance AgreementSection 12.
1. Notwithstanding anything to the contrary herein, and the transferor Lender shall be released from its obligations hereunder each Bank may pledge all or any part of any Loan to a corresponding extentFederal Reserve Bank in support of borrowings made by such Bank from such Federal Reserve Bank without notice to, or consent from, the Agent, any Borrower or any other Bank and no further consent or action by any party shall be required. Upon the consummation without payment of any assignment pursuant fee. Any Bank may furnish any information concerning the Borrowers in the possession of such Bank from time to this Section 10.11(ctime to assignees and participants (including prospective assignees and participants), ; provided that such Bank shall require any such prospective assignee or such participant (prospective or otherwise) to agree in writing to maintain the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and confidentiality of such transferor Lender, as appropriateinformation. In connection with any such assignmentassignment or transfer or sale of a participation hereunder, the transferor Lender assigning, transferring or selling Bank shall pay to Administrative the Agent an administrative processing fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00)2,500.
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G).
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Assignments; Participations. (a) Any Lender may make, carry or transfer Loans at, to or for the account Without obtaining any consent of any of the Loan Parties, Lender (and any subsequent assignee of Lender) may (i) transfer and assign all or any of its branch offices rights or delegate any or all of its duties under this Agreement and/or the office other Loan Documents, or (ii) grant participations in the Advances to Participants in accordance with Section 10.4(b). Lender may, without obtaining any consent of an Affiliate any of the Loan Parties, disclose to all prospective and actual assignees and Participants all financial, business and other information about the Loan Parties which ▇▇▇▇▇▇ may possess at any time. For the avoidance of doubt, Lender may, without obtaining any consent of any of the Loan Parties, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that no such pledge or assignment shall release Lender except to the extent from any of its obligations hereunder or substitute any such transfer would result in increased costs to Borrowerpledgee or assignee for Lender as a party hereto.
(b) Any Lender may at any time grant time, without the consent of, or notice to, Borrower, sell to one or more banks or other financial institutions (each a “Participant”) Persons participating interests in its Commitment Advances, commitments or the Obligations owing to such Lender; provided, however, other interests hereunder (i) any such participating interest must be for Person, a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document"Participant"). In the event of any such grant a sale by Lender of a participating interest to a Participant, such Lender (i) ▇▇▇▇▇▇'s obligations hereunder shall remain responsible unchanged for the performance of its obligations hereunderall purposes, and (ii) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s ▇▇▇▇▇▇'s rights and obligations hereunder, and (iii) all amounts payable by Borrower shall be 4891-8586-8126.7 determined as if Lender had not sold such participation and shall be paid directly to Lender, provided, however, notwithstanding the foregoing, Borrower hereby agrees that each Participant shall be entitled to the benefits of Section 2.6(f); provided, further, a Participant shall not be entitled to receive any greater payment under Section 2.6(f), with respect to any participation, than Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in Law, regulation ruling, treaty or other action or doctrine of a Governmental Authority that occurs after the date the Participant acquired the applicable participation. ▇▇▇▇▇▇▇▇ agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and with respect to any letter of credit to the same extent as if the amount of its participating interest were owing directly to it as Lender under this Agreement. Any agreement pursuant If Lender sells a participation to a Participant as provided under this Section 10.4(b), it shall, acting solely for this purpose as a non-fiduciary agent of ▇▇▇▇▇▇▇▇, maintain a register on which any Lender may grant such a participating it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest shall provide that such Lender shall retain in the sole right and responsibility to enforce Advances or other obligations under the obligations of Borrower hereunder including, without limitation, Loan Documents (the right to approve any amendment, modification or waiver of any provision of this Agreement"Participant Register"); provided, however, such that Lender may agree with shall not have any obligation to disclose all or any portion of the Participant that it will not, without Register (including the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount identity of any such payment Participant or any information relating to a Participant's interest in any commitments, loans, letters of principal, credit or (ivits other obligations under any Loan Document) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of a participating interest granted credit or other obligation is in accordance with this registered form under Section 10.11(b)5f.103-1(c) of the United States Treasury Regulations. The selling entries in the Participant Register shall be conclusive and binding absent manifest error, and Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Participant Register as a Lender hereunder the owner of such participation for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or notwithstanding any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agentthe contrary. Upon its receipt For the avoidance of an Assignment and Acceptance Agreement executed by an assigning Lenderdoubt, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower▇▇▇▇▇▇ shall have no responsibility for maintaining a Participant Register.
(ec) In addition to None of the assignments and participations permitted under the foregoing provisions of this Section 10.11Loan Parties may assign, any Lender may assign and pledge all delegate or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or otherwise transfer any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign rights or participate any interest in any Loan held by it other obligations hereunder to Borrower, or under any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, Loan Document without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction▇▇▇▇▇▇.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G).
Appears in 1 contract
Sources: Credit Agreement (HCI Group, Inc.)
Assignments; Participations. (a) Any Each Lender may makemay, carry or transfer Loans at, to or for the account of any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld withheld, conditioned or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or or, if less than all, a portion equal to at least $10,000,000 in the aggregate for the assigning Lender, of its Commitment and its other such rights and obligations under this Agreement and to one or more Eligible Transferees (but not including for this purpose any assignments in the Notes; provided, however, (i) any partial assignment form of a Commitment participation), each of which assignees shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains become a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as a Lender by execution of the effective date of the an Assignment and Acceptance Agreement Acceptance; provided, that, (i) such transfer or assignment will not be effective until recorded by Agent on the Register and (ii) Agent shall have all the rights and obligations received for its sole account payment of a processing fee from the assigning Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and or the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment assignee in the amount of Three Thousand Five Hundred Dollars ($3,500.00)5,000.
(db) Administrative Agent shall maintain at a register of the Principal Office names and addresses of Lenders, their Commitments and the principal amount and interest of their Loans (the “Register”). Agent shall also maintain a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register shall modify the Register to give effect to each Assignment and Acceptance. The entries in the Register shall be conclusive and binding for the recordation of the names all purposes, absent manifest error, and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. BorrowerBorrowers, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by any Borrower or and any Lender at any reasonable time and from time to time upon reasonable prior notice notice. This Section 13.7 shall be construed so that the Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and regulations thereunder.
(c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and to Administrative Agent. Upon the other Financing Agreements and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations (including, without limitation, the obligation to participate in Letter of Credit Accommodations) of a Lender hereunder and thereunder and the assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it to an Eligible Transferee pursuant to such Assignment and Acceptance, relinquish its receipt rights and be released from its obligations under this Agreement.
(d) By execution and delivery of an Assignment and Acceptance Agreement executed by an assigning LenderAcceptance, together the assignor and assignee thereunder confirm to and agree with each Note subject to such assignment, Administrative Agent shall, if other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement has been completed and if Administrative Agent receives or any of the processing and recording fee described in Section 10.11(c) aboveother Financing Agreements or the execution, (i) accept such Assignment and Acceptance Agreementlegality, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Financing Agreements furnished pursuant hereto, (ii) record the information contained therein in assigning Lender makes no representation or warranty and assumes no responsibility with respect to the Register and financial condition of any Borrower or any of its Subsidiaries or the performance or observance by any Borrower of any of the Obligations; (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions such assignee confirms that it has received a copy of this Section 10.11Agreement and the other Financing Agreements, any Lender may assign together with such other documents and pledge all information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the assigning Lender, Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or any portion of not taking action under this Agreement and the other Financing Agreements, (v) such assignee appoints and authorizes Agent to take such action as agent on its Loans behalf and its Note to any Federal Reserve Bank exercise such powers under this Agreement and the other Financing Agreements as collateral security pursuant are delegated to Regulation A Agent by the terms hereof and any Operating Circular issued by thereof, together with such Federal Reserve Bankpowers as are reasonably incidental thereto, and (vi) such Loans assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and Notes shall the other Financing Agreements are required to be fully transferable performed by it as provided thereina Lender. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender Subject to Section 13.5 hereof, Agent and Lenders may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates Borrower in the possession of such Agent or any Lender from time to time to Assignees and Participants (including prospective Assignees assignees and Participants.
(e) subject Each Lender may sell participations to compliance one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Financing Agreements (including, without limitation, all or a portion of its Commitments and the Loans owing to it and its participation in the Letter of Credit Accommodations, without the consent of Agent or the other Lenders); provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Financing Agreements shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and Borrowers, the other Lenders and Agent shall continue to deal solely and directly with Section 11.7such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Financing Agreements, and (iii) the Participant shall not have any rights under this Agreement or any of the other Financing Agreements (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by any Borrower hereunder shall be determined as if such Lender had not sold such participation.
(f) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lenders from such Federal Reserve Bank; provided, that, no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee for such Lender as a party hereto.
(g) Anything in Borrowers shall assist Agent or any Lender permitted to sell assignments or participations under this Section 10.11 13.7 in whatever manner reasonably necessary in order to enable or effect any such assignment or participation, including (but not limited to) the contrary notwithstandingexecution and delivery of any and all agreements, no Lender may assign notes and other documents and instruments as shall be requested and the delivery of informational materials, appraisals or participate other documents for, and the participation of relevant management in meetings and conference calls with, potential Lenders or Participants. Borrowers shall certify the correctness, completeness and accuracy, in all material respects, of all descriptions of Borrowers and its affairs provided, prepared or reviewed by any interest Borrower that are contained in any Loan held selling materials and all other information provided by it hereunder to Borrower, any other Obligor or any of their respective Affiliatesand included in such materials.
(h) Each Lender agrees that, without the prior written consent of Borrower The Lenders signatory hereto that have executed and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank delivered Assignment and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder Acceptances with respect to all Letters of Credit outstanding as of the effective date of its resignation as credit facility under the Issuing Lender Existing Financing Agreements hereby confirm that such Assignment and all Letter of Credit Obligations with respect thereto (including Acceptances are replaced and superseded by the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G)terms hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Haynes International Inc)
Assignments; Participations. The Borrowers acknowledge and agree that any Bank may at any time:
(aA) Any Lender may make, carry assign or transfer Loans at, to or for the account of any of its branch offices rights or obligations under this Agreement in a transaction intended solely as a source of funding, to a Federal Reserve Bank, without the consent of or notice to MTI or the office Agent;
(B) sell participations in the Loans outstanding hereunder to another financial institution (after providing written notice to MTI regarding such sale at least five (5) days prior thereto), but in the event of an Affiliate any such participation, no party to this Agreement shall have any obligations or responsibilities to such participant other than its obligations or responsibilities to the seller of such Lender participation, and no participation shall relieve any party of its obligations and duties hereunder, provided that, any agreement pursuant to which any Bank may grant a participation shall not limit such Bank's ability to agree to any modification, amendment or waiver of the Loan Documents without the consent of the participant except to the extent such transfer modification, amendment or waiver would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, change the amount of its Commitmentthe Commitments, reduce the principal of or if any rate of interest on the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights Loans or benefits under this Agreement related fees or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend postpone the date fixed for the any payment of principal of or interest on the Loans or portions thereof owing related fees;
(C) assign all or any portion of its rights under the Loans and its Commitment in minimum amounts of $5,000,000 either (A) to an Affiliate of such Lender, (iii) reduce the amount of any such payment of principalBank, or (ivB) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (the Agent, which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and together with the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee Bank to such transferor Lender the Agent of a $3,500 transfer fee, and, except after the occurrence of an amount equal to the purchase price agreed between such transferor Lender and such AssigneeEvent of Default, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative MTI, which shall not be unreasonably withheld or delayed. Promptly upon any such assignment described in (A) or (B) above, the assignee shall execute a joinder to this Agreement in form satisfactory to the Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification ofagreeing to be bound by the terms and conditions of this Agreement, or filings in respect ofand then shall be deemed a Bank for all purposes hereunder, any Loan or Note under and the Securities Act or any Borrowers shall execute and deliver new Notes and such other securities laws of the United States of America or of any other jurisdiction.documents as may be appropriate to reflect such assignment; and
(iD) Notwithstanding anything to share credit information on the contrary contained herein, if at any time The PrivateBank Borrowers with prospective and Trust Company assigns all of its Commitment actual participants and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G)assignees.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Marlton Technologies Inc)
Assignments; Participations. (a) Any Lender The Borrowers acknowledge and agree that any Bank may make, carry at any time: assign or transfer Loans at, to or for the account of any of its branch offices rights or obligations under this Agreement in a transaction intended solely as a source of funding, to a Federal Reserve Bank, without the consent of or notice to MTI or the office Agent; sell participations in the Loans outstanding hereunder to another financial institution (after providing written notice to MTI regarding such sale at least five (5) days prior thereto), but in the event of an Affiliate any such participation, no party to this Agreement shall have any obligations or responsibilities to such participant other than its obligations or responsibilities to the seller of such Lender participation, and no participation shall relieve any party of its obligations and duties hereunder, provided that, any agreement pursuant to which any Bank may grant a participation shall not limit such Bank's ability to agree to any modification, amendment or waiver of the Loan Documents without the consent of the participant except to the extent such transfer modification, amendment or waiver would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, change the amount of its Commitmentthe Commitments, reduce the principal of or if any rate of interest on the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights Loans or benefits under this Agreement related fees or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend postpone the date fixed for the any payment of principal of or interest on the Loans or portions thereof owing related fees; assign all or any portion of its rights under the Loans and its Commitment in minimum amounts of $1,000,000 either (A) to an Affiliate of such Lender, (iii) reduce the amount of any such payment of principalBank, or (ivB) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (the Agent, which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and obligations under this Agreement and together with the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee Bank to such transferor Lender the Agent of a $3,500 transfer fee, and, except after the occurrence of an amount equal to the purchase price agreed between such transferor Lender and such AssigneeEvent of Default, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative MTI, which shall not be unreasonably withheld or delayed. Promptly upon any such assignment described in (A) or (B) above, the assignee shall execute a joinder to this Agreement in form satisfactory to the Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification ofagreeing to be bound by the terms and conditions of this Agreement, or filings in respect ofand then shall be deemed a Bank for all purposes hereunder, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign Borrowers shall execute and deliver new Notes and such other documents as may be appropriate to reflect such assignment; and share credit information on the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank Borrowers with prospective and Trust Company as the Issuing Lender. If The PrivateBank actual participants and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G)assignees.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Marlton Technologies Inc)
Assignments; Participations. (a) Any With the consent of (i) in the case of Working Capital Loans, the A Term Loan and the B Term Loan, the U.S. Borrowers which will not be unreasonably withheld or delayed and (ii) in the case of the Canadian Term Loan, SLQ which will not be unreasonably withheld, the Lender may make, carry or transfer Loans at, to or for shall have the account of any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may right at any time grant to assign to one or more commercial banks or other financial institutions (each all or a “Participant”) participating interests in portion of its Commitment or Working Capital Commitment, the Obligations Loans owing to such Lenderit and the Notes held by it. The Lender may also grant participations in all or any part of its rights and obligations under this Agreement (including, without limitation, all or any part of the Working Capital Commitment and the Loans, as applicable) to one or more other Persons; provided, however, that (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant disposition -------- ------- shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participantapplicable U.S. Borrower or SLQ, agree require such Borrower to (i) except as otherwise permitted in this Agreement, increase file a registration statement with the Securities and Exchange Commission or extend apply to qualify the term or extend Loans under the time or waive blue sky law of any requirement for the reduction of termination of, such Lender’s Commitment, state; and (ii) extend the date fixed Lender shall make and receive all payments for the payment account of principal its participant and shall retain exclusively, and shall continue to exercise exclusively, all rights of or interest on approval and administration available hereunder with respect to the Working Capital Commitment and the Loans or portions thereof owing even after giving effect to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any such participation, and Lender shall make such arrangements with its participants as may be necessary to accomplish the foregoing. No holder of a participation hereunder andin all or any part of the Loans shall be a "lender" for any purpose under this Agreement; provided, if requested -------- however, that each holder of a participation shall have the ------- rights of increased capital as the Lender (including any right to receive payment) under Sections 2.9, 3.7 and 12.7; -------- --- --- ---- provided, further, that all requests for any such payments -------- ------- shall be made by Administrative Agenta participant through the Lender. The right of each holder of a participation to receive payment under Sections 2.9, certify 3.7 and 12.7 and shall be limited to Administrative Agent the lesser ------------ --- ---- of (i) the amounts actually incurred by such holder for which payment is provided under such Sections and (ii) the amounts that would have been payable under such Sections by the U.S. Borrowers or SLQ to the Lender granting the participation to such holder had such participation not been granted.
(b) It is permitted hereunderexpressly agreed that, in connection with prospective offers for the sale and transfer of any assignment or any participation pursuant to this Section 11.2, Lender may ------------ provide to such prospective assignees and participants such information pertaining to any Borrower as Lender may deem appropriate provided that, prior to any such disclosure of -------- non-public information, such proposed assignee or participant shall agree in writing (under the same terms and conditions outlined in Section 12.15 hereof) to preserve the ------------- confidentiality of any confidential information relating to the Borrowers received by it from the Lender.
(c) Any Notwithstanding the foregoing provisions of this Section 11.2, Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld at any time sell, assign, transfer, ------------ or delayed), assign to one or more Eligible Assignees (each an “Assignee”) negotiate all or a portion any part of its Commitment and its other rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender Affiliate of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G).
Appears in 1 contract
Sources: Loan and Security Agreement (Emons Transportation Group Inc)
Assignments; Participations. (a) Any Each Lender may makeshall have the right, carry or transfer Loans atwith the Agent's consent and after consultation with the Borrowers regarding the prospective assignee, to or for the account of any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may at any time grant to assign to one or more commercial banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its Commitment Commitment, the Loans owing to it and Capital Expenditure Loan Notes held by it and its other rights and obligations with respect to Letters of Credit and Acceptances; provided, however, that the Agent shall not withhold its consent to any such assignment made in compliance with this Section 12.3 to any of the financial institutions set forth on Schedule 12.3; and provided, further, that (1) each such assignment shall be of a constant, and not a varying percentage of all of the assigning Lender's corresponding rights and obligations under this Agreement and the Notes; provided, howeverassignment shall apply the same percentage to such Lender's Commitment and Loans, (i2) any partial assignment the aggregate amount of a the outstanding Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply being assigned pursuant to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement (determined as of the effective date of the Assignment and Acceptance entered into with respect to such assignment by the assigning Lender and the assignee, and accepted by the Agent, in substantially the form of Exhibit H ("Assignment and Acceptance")) shall in no event be less than $15,000,000 and integral multiples of $5,000,000 in excess of that amount, except that such limitation shall not apply to an assignment by any Lender of all of its rights and obligations under this Agreement or to an assignment by an original signatory to this Agreement to another such signatory, (3) except in the case of an assignment in whole of a Lender's rights and obligations under this Agreement or an assignment by an original signatory to this Agreement to another such signatory, immediately after giving effect to any assignment the aggregate amount of the outstanding Commitment still held by the assigning Lender in its own name shall in no event be less than $5,000,000, and (4) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together the Capital Expenditure Loan Notes subject to such assignment with a processing and recordation fee of $5,000. Notwithstanding the immediately preceding sentence, no Lender other than BABC shall be permitted to make any assignment of any of its Commitment, Loans or rights and obligations with respect to Letters of Credit and Acceptances to any commercial bank or other financial institution other than BABC, unless BABC shall have all declined to purchase such Commitment, Loans and rights and obligations pursuant to an assignment transaction having substantially identical terms. Upon execution, delivery, acceptance and recording of any Assignment and Acceptance, from and after the effective date specified therein, which effective date shall be at least two (2) Business Days after the execution thereof, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations (including, but not limited to, the obligation to participate in credit support or other enhancement for Letters of Credit and Acceptances pursuant to Section 2.5(f)) of a Lender with a Commitment as set forth in hereunder and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance AgreementAcceptance, relinquish its rights and the transferor Lender shall be released from its obligations hereunder to a corresponding extentunder this Agreement (and, in the case of an Assignment and no further consent Acceptance covering all or action by any party shall be required. Upon the consummation remaining portion of any assignment pursuant to an assigning Lender's rights and obligations under this Section 10.11(c)Agreement, the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay cease to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00be a party hereto).
(db) Administrative By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (4) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (5) such 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 (6) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at the Principal Office its address set forth in Section 14.7 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of books and records, including computer records, in which it shall record 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 “"Register”"). Administrative Agent The entries in the Register shall give each Lender and Borrower notice constitute rebuttably presumptive evidence, absent manifest error, of the assignment by any Lender accuracy of its rights as contemplated by this Section 10.11. Borrowerthe information contained therein, Administrative and the Borrowers, the Agent and the Lenders may treat each Person whose the name of which is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. notice.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning LenderLender and an assignee, together with each Note the Capital Expenditure Loan Notes subject to such assignment, Administrative the Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives is in substantially the processing and recording fee described in Section 10.11(c) aboveform of Exhibit H, (i1) accept such Assignment and Acceptance AgreementAcceptance, (ii2) record the information contained therein in the Register Register, and (iii3) give prompt notice thereof to the Borrowers. Within five (5) Business Days after the Borrowers' receipt of such notice, the Borrowers, at their own expense, will execute and deliver to the Agent in exchange for the surrendered Capital Expenditure Loan Notes, new Capital Expenditure Loan Notes to the order of (A) such assigning Lender, in amounts corresponding to the interest in the rights and obligations under this Agreement retained by such Lender, and (B) such assignee, in amounts corresponding to the interest in the assigning Lender's rights and obligations under this Agreement acquired by such assignee pursuant to such Assignment and Acceptance. Such new Capital Expenditure Loan Notes shall be in aggregate principal amounts equal to the aggregate principal amounts of such surrendered Capital Expenditure Loan Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit F. Upon delivery of such new Capital Expenditure Loan Notes, the surrendered Capital Expenditure Loan Notes shall be cancelled by the Agent and returned to the applicable Borrower.
(e) In addition Each Lender may sell participations in all or any part of its rights and obligations under this Agreement (including, without limitation, all or any part of its Commitment, the Loans or its rights in connection with Letters of Credit and Acceptances, as applicable), in minimum amounts of $10,000,000 and integral multiples of $5,000,000 in excess of that amount, to one or more other Persons; provided, however, that (1) such Lender's obligations under this Agreement shall remain unchanged, (2) such Lender shall remain solely responsible to the assignments other parties hereto for the performance of such obligations, and participations permitted (3) the Agent, the Borrowers and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. No Participating Lender may be given any rights to require the foregoing provisions Lender granting such Participating Lender's participation to vote against any matters, other than (A) the release of all or substantially all of the Collateral, or (B) any amendment, modification or waiver of any provision of Articles 2, 3 or 4 relating to the principal amount of the Loans, Letters of Credit or Acceptances, the maturity dates of the Loans, the interest rates borne by the Loans and the amounts of any fees payable to such Lender under Sections 3.5 through 3.8 and 3.11. No -130- 139 Participating Lender shall be a "Lender" for any purpose under this Agreement; provided, however, that any Participating Lender may be given the rights and obligations of a Lender (including any right to receive payment) under Sections 3.3(e) and (f), 3.5 through 3.8, 3.11, 4.3, 4.8 and 14.8, provided, further, that all requests for any such payments shall be made by any Participating Lender through the Lender granting such participation. The right of each Participating Lender to receive payment pursuant to the immediately preceding sentence shall be limited to the lesser of (i) the amounts actually incurred by such Participating Lender for which payment is provided under such Sections and (ii) the amounts that would have been payable under such Sections to the Lender granting the participation had such participation not been granted. It is expressly agreed that, in connection with prospective offers for the sale and transfer of any participation pursuant to this Section 10.1112.3(e), any Lender may assign provide to any prospective Participating Lender such information pertaining to the Borrowers as such Lender may deem appropriate.
(f) If a Participating Lender shall at any time with the Borrowers' knowledge participate with any Lender in the Loans, each Borrower hereby grants to such Participating Lender, and pledge such Participating Lender shall have and is hereby given, for the its benefit and that of the Agent and the Lenders, a continuing Lien on and security interest in any money, Securities and other property of such Borrower in the custody or possession of such Participating Lender, including the right of set-off, to the extent of the total amount of the Obligations, and such Participating Lender shall be deemed to have the same right of set-off to the extent of the Participating Lender's participation in the Obligations under this Agreement as it would have if it were a direct lender.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its Loans rights under and its Note to interest in this Agreement, in favor of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, in accordance with Regulation A of the Federal Reserve Board or U.S. Treasury Regulation 31 CFR Section 203.14, and such Loans and Notes shall be fully transferable as provided therein. No Federal Reserve Bank may enforce such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor pledge or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any security interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliatesmanner permitted under applicable law.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G).
Appears in 1 contract
Sources: Loan and Security Agreement (Roadmaster Industries Inc)
Assignments; Participations. (a) Any This Agreement shall be binding upon and inure to the benefit of the Borrowers and their successors and to the benefit of the Lender may make, carry or transfer Loans at, and their respective successors and assigns. Except pursuant to or for mergers in which a Borrower is the account of any of its branch offices or the office of an Affiliate of such Lender except surviving entity to the extent such transfer would result in increased costs to Borrower.
(b) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or permitted hereunder, the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant rights and not a varying percentage interest, (ii) no Lender may grant a participating interest in its Commitment, or if any obligations of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if any of the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests must be equal to Ten Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits Borrowers under this Agreement shall not be assigned or any other Loan Document. In the event of any such grant by Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of Borrower hereunder including, delegated without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon. An assignment or other transfer which is not permitted by Section 10.11(c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 10.11(b). The selling Lender shall notify Administrative Agent and Borrower of the sale of any participation hereunder and, if requested by Administrative Agent, certify to Administrative Agent that such participation is permitted hereunder.
(c) Any Lender may with the prior written consent of Administrative Agent the Lender, and any purported assignment or delegation without such consent shall be void. The Lender may, with the consent of the Parent (which consent shall not be unreasonably withheld or delayeddelayed and which consent shall not be required for any proposed participation or assignment made after the occurrence of an Event of Default and during the continuance thereof), assign or grant participations in the Loans and Commitments to one or more Eligible Assignees (banks or other financial institutions, provided that each such assignment or participation shall be in an “Assignee”) amount that is a minimum amount of $2,500,000. Each of the Borrowers authorizes the Lender to disclose to any participant or assignee any prospective participant or assignee of any and all information in the Lender's possession concerning the Companies which has been delivered to the Lender by or on behalf of the Companies pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Companies in connection with the Lender's credit evaluation prior to becoming a party to this Agreement and such assignee or participant shall treat such information as confidential. The Lender may at any time pledge or assign all or a any portion of its Commitment and its other such Lender's rights and obligations under this Agreement and the Notes; provided, however, (i) any partial assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof and after giving effect to such partial assignment the assigning Lender retains a portion of the Commitment so assigned, or if any of the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess thereof (provided, however, the conditions set forth in this Section 10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment); and (ii) each such assignment shall be effected by means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement as of the effective date of the Assignment and Acceptance Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder other Loan Documents to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to Administrative Agent an administrative fee for processing such assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).
(d) Administrative Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). Administrative Agent shall give each Lender and Borrower notice of the assignment by any Lender of its rights as contemplated by this Section 10.11. Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and if Administrative Agent receives the processing and recording fee described in Section 10.11(c) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to Borrower.
(e) In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.11, any Lender may assign and pledge all or any portion of its Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning Borrower, any other Obligor or any of their respective Affiliates in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants) subject to compliance with Section 11.7.
(g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder to Borrower, any other Obligor or any of their respective Affiliates.
(h) Each Lender agrees that, without the prior written consent of Borrower and Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.
(i) Notwithstanding anything to the contrary contained herein, if at any time The PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunderbank; provided, however, that no failure by Borrower to appoint such pledge or assignment shall release such Lender from its obligations hereunder or any such successor shall affect the resignation of The PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust Company resigns as the Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as the Issuing Lender and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make an advance of a Base Rate other Loan or fund risk participations for Letter of Credit Borrowings pursuant to Section 3 of Exhibit G)Document.
Appears in 1 contract
Sources: Credit Agreement (New World Coffee Manhattan Bagel Inc)