Common use of Bank Assignment Clause in Contracts

Bank Assignment. (a) At any time from the Interim Term Commencement Date until the Bank Commitment Expiration Date, in the event that on an Acceptance Date, the Initial Lender does not make a Loan requested by the Owner Trustee, then at any time, the Lessee (on behalf of the Owner Trustee) shall have the right to require the Initial Lender to assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements in whole to the Bank Lenders pursuant to this Section 8.1(a). In addition, at any time on or prior to the Bank Commitment Expiration Date, if the Initial Lender elects to give notice to the Owner Trustee that it desires to assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements to the Bank Lenders, the Owner Trustee hereby requests and directs, and the Lessee hereby agrees to such request and direction, that the Initial Lender assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements in whole to the Bank Lenders and the Owner Trustee hereby agrees to pay the amounts described in Section 8.2(b) below (with funds provided by the Lessee as Supplemental Rent). An assignment by either the Initial Lender or Bank Lender of an interest in the Loans, the Notes and the related rights under the Operative Agreements is referred to herein as a "Bank Assignment," and the effective date of any such Bank Assignment is referred to herein as the "Effective Date." Upon any such election by the Initial Lender or any such request by the Owner Trustee, the Initial Lender may effect a Bank Assignment and the Bank Lenders shall accept such Bank Assignment without setoff, counterclaim or defenses of any kind and shall assume all of the Initial Lender's obligations with respect to the Loans, the Notes and all of the Initial Lender's right, title, interest and obligations under the Operative Agreements. Notwithstanding the foregoing, no Bank Lender shall be obligated to effectuate a Bank Assignment unless the Agent shall have certified in writing to such Bank Lender that the Net Receivables Balance equals or exceeds the Net Investment on the related Effective Date. In connection with any Bank Assignment by the Initial Lender, each Bank Lender shall, on the related Effective Date, pay to the Initial Lender the amount specified in Section 8.2(a) below. Upon any assignment by the Initial Lender to the Bank Lenders contemplated hereunder, the Initial Lender shall cease to fund any additional Loans. (b) The failure of any Bank Lender to perform any obligations required by it under this Section 8.1 shall not relieve any other Bank Lender of any of its obligations hereunder. (c) It is expressly understood and agreed by the Initial Lender, the Bank Lenders and the other parties hereto that the no Bank Assignment may be effected hereunder, unless, following the related Effective Date, the ratio of each of the assignee's Lender Class A Commitment, Lender Class B Commitment and Lender Class C Commitment, respectively, to the assignee's Lender Class Commitment, shall equal the corresponding ratio of each of the assignor's Lender Class A Commitment, Lender Class B Commitment and Lender Class C Commitment, respectively, to the assignor's Lender Class Commitment prior to the related Effective Date. In addition, each Bank Lender agrees that such Bank Lender may not effect a Bank Assignment hereunder without also simultaneously assigning to the assignee of such Bank Assignment an equal portion of its interest in the Liquidity Purchase Agreement. (d) No Bank Lender may make a Bank Assignment to any Person unless approved in writing by the Owner Trustee, the Lessee, the Initial Lender and the Agent; provided however, the consent of the Owner Trustee and the Lessee shall not be required if a Default or Event of Default has occurred and is continuing; provided, further, the consent of the Initial Lender shall not be required if the Initial Lender is not a holder of a Note. In the case of a Bank Assignment by the Initial Lender pursuant to Section 8.1(a) or by a Bank Lender to another Person, the assignor shall deliver to the assignee(s) an Assignment and Assumption Agreement in substantially the form of Exhibit E attached hereto (the "Assignment Agreement"), duly executed, assigning to the assignee a pro rata interest in the Loans, the Notes and the assignor's rights and obligations hereunder and the assignor shall promptly execute and deliver all further instruments and documents, and take all further action, that the assignee may reasonably request, in order to protect, or more fully evidence the assignee's right, title and interest in and to such interest and to enable the Agent, on behalf of such assignee, to exercise or enforce any rights hereunder and under the other Operative Agreements to which such assignor is or, immediately prior to such assignment, was a party; provided, however, the assignor shall not relinquish (A) any rights arising prior to such assignment or (B) any rights of indemnification, rights for reimbursement for increased costs or other similar rights whenever arising. On the Effective Date of any Bank Assignment, (i) the assignee shall be a Bank Lender for all purposes of this Participation Agreement and the other Operative Agreements to which the Bank Lenders are parties as if the assignee were originally a party thereto and the assignee shall have all of the rights and obligations of the assignor hereunder and under the other Operative Agreements to which such assignor is or, immediately prior to such Bank Assignment, was a party with respect to such interest for all purposes of this Participation Agreement and under the other Operative Agreements to which such assignor is or, immediately prior to such Bank Assignment, was a party (it being understood that the Bank Lenders, as assignees, shall be obligated to fund Loans in accordance with the terms of the Loan Agreement and this Participation Agreement, notwithstanding that the Initial Lender was not so obligated) and (ii) the assignor shall relinquish its rights with respect to such Bank Assignment for all purposes of this Participation Agreement and under the other Operative Agreements to which such assignor is or, immediately prior to such assignment, was a party. No Bank Assignment shall be effective unless a fully executed copy of the related Assignment and Assumption Agreement shall have been delivered to the Agent, the Owner Trustee, the Lessee and the Initial Lender. All costs and expenses of the Agent and the assignor and assignee incurred in connection with any Bank Assignment shall be borne by the Owner Trustee (with funds provided by the Lessee as Supplemental Rent) and not by the assignor or any assignee. (e) By executing and delivering an Assignment and Assumption Agreement, the assignor and assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assignor makes no representation or warranty and assumes no responsibility with respect to any warranties or representations made in or in connection with this Participation Agreement, the other Operative Agreements or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value or this Participation Agreement, the other Operative Agreements or any such other instrument or document; (ii) the assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Owner Trustee or the Lessee or the performance or observance by the Owner Trustee or the Lessee of any of their respective obligations under this Participation Agreement, the other Operative Agreements or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Participation Agreement, the other Operative Agreements and such other instruments, documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement and to purchase such interest; (iv) such assignee shall, independently and without reliance upon the Agent, or any of its Affiliates, or the assignor and based on such agreements, 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 Participation Agreement and the other Operative Agreements; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Participation Agreement, the other Operative Agreements and any other instrument or document furnished pursuant hereto or thereto as are delegated to the Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto and to enforce its respective rights and interests in and under this Participation Agreement, the other Operative Agreements, the Loans and the Notes; (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Participation Agreement and the other Operative Agreements are required to be performed by it as the assignee of the assignor; and (vii) such assignee covenants and agrees that prior to the date which is one year and one day after the payment in full of all outstanding Commercial Paper or other indebtedness of the Initial Lender, it will not institute against, or join any Person in instituting against, the Initial Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States relating to the Overall Transaction. (f) After any Bank Assignment by the Initial Lender (and the payment of all amounts owing to the Initial Lender in connection therewith), all rights of the Initial Lender set forth herein shall be deemed to be afforded to the Agent on behalf of the Bank Lenders instead of the Initial Lender.

Bank Assignment. (a) At any time from the Interim Term Commencement Date until the Bank Commitment Expiration Date, in the event that on an Acceptance Date, the Initial Lender does not make a Loan requested by the Owner Trustee, then at any time, the Lessee (on behalf of the Owner Trustee) shall have the right to require the Initial Lender to assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements in whole to the Bank Lenders pursuant to this Section 8.1(a). In addition, at any time on or prior to the Bank Commitment Expiration Date, if the Initial Lender elects to give notice to the Owner Trustee that it desires to assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements to the Bank Lenders, the Owner Trustee hereby requests and directs, and the Lessee hereby agrees to such request and direction, that the Initial Lender assign its interest in the Loans, the Notes and all of its right, title, interest and obligations under the Operative Agreements in whole to the Bank Lenders and the Owner Trustee hereby agrees to pay the amounts described in Section 8.2(b) below (with funds provided by the Lessee as Supplemental Rent). An assignment by either the Initial Lender or Bank Lender of an interest in the Loans, the Notes and the related rights under the Operative Agreements is referred to herein as a "Bank Assignment," and the effective date of any such Bank Assignment is referred to herein as the "Effective Date." Upon any such election by the Initial Lender or any such request by the Owner Trustee, the Initial Lender may effect a Bank Assignment and the Bank Lenders shall accept such Bank Assignment without setoff, counterclaim or defenses of any kind and shall assume all of the Initial Lender's obligations with respect to the Loans, the Notes and all of the Initial Lender's right, title, interest and obligations under the Operative Agreements. Notwithstanding the foregoing, no Bank Lender shall be obligated to effectuate a Bank Assignment unless the Agent shall have certified in writing to such Bank Lender that the Net Receivables Balance equals or exceeds the Net Investment on the related Effective Date. In connection with any Bank Assignment by the Initial Lender, each Bank Lender shall, on the related Effective Date, pay to the Initial Lender the amount specified in Section 8.2(a) below. Upon any assignment by the Initial Lender to the Bank Lenders contemplated hereunder, the Initial Lender shall cease to fund any additional Loans. (b) The failure of any Bank Lender to perform any obligations required by it under this Section 8.1 shall not relieve any other Bank Lender of any of its obligations hereunder. (c) It is expressly understood and agreed by the Initial Lender, the Bank Lenders and the other parties hereto that the no Bank Assignment may be effected hereunder, unless, following the related Effective Date, the ratio of each of the assignee's Lender Class A Commitment, Lender Class B Commitment and Lender Class C Commitment, respectively, to the assignee's Lender Class Commitment, shall equal the corresponding ratio of each of the assignor's Lender Class A Commitment, Lender Class B Commitment and Lender Class C Commitment, respectively, to the assignor's Lender Class Commitment prior to the related Effective Date. In addition, each Bank Lender agrees that such Bank Lender may not effect a Bank Assignment hereunder without also simultaneously assigning to the assignee of such Bank Assignment an equal portion of its interest in the Liquidity Purchase Agreementliquidity purchase agreement. (d) No Bank Lender may make a Bank Assignment to any Person unless approved in writing by the Owner Trustee, the Lessee, the Initial Lender and the Agent; provided however, the consent of the Owner Trustee and the Lessee shall not be required if a Default or Event of Default has occurred and is continuing; provided, further, the consent of the Initial Lender shall not be required if the Initial Lender is not a holder of a Note. In the case of a Bank Assignment by the Initial Lender pursuant to Section 8.1(a) or by a Bank Lender to another Person, the assignor shall deliver to the assignee(s) an Assignment and Assumption Agreement in substantially the form of Exhibit E attached hereto (the "Assignment Agreement"), duly executed, assigning to the assignee a pro rata interest in the Loans, the Notes and the assignor's rights and obligations hereunder and the assignor shall promptly execute and deliver all further instruments and documents, and take all further action, that the assignee may reasonably request, in order to protect, or more fully evidence the assignee's right, title and interest in and to such interest and to enable the Agent, on behalf of such assignee, to exercise or enforce any rights hereunder and under the other Operative Agreements to which such assignor is or, immediately prior to such assignment, was a party; provided, however, the assignor shall not relinquish (A) any rights arising prior to such assignment or (B) any rights of indemnification, rights for reimbursement for increased costs or other similar rights whenever arising. On the Effective Date of any Bank Assignment, (i) the assignee shall be a Bank Lender for all purposes of this Participation Agreement and the other Operative Agreements to which the Bank Lenders are parties as if the assignee were originally a party thereto and the assignee shall have all of the rights and obligations of the assignor hereunder and under the other Operative Agreements to which such assignor is or, immediately prior to such Bank Assignment, was a party with respect to such interest for all purposes of this Participation Agreement and under the other Operative Agreements to which such assignor is or, immediately prior to such Bank Assignment, was a party (it being understood that the Bank Lenders, as assignees, shall be obligated to fund Loans in accordance with the terms of the Loan Agreement and this Participation Agreement, notwithstanding that the Initial Lender was not so obligated) and (ii) the assignor shall relinquish its rights with respect to such Bank Assignment for all purposes of this Participation Agreement and under the other Operative Agreements to which such assignor is or, immediately prior to such assignment, was a party. No Bank Assignment shall be effective unless a fully executed copy of the related Assignment and Assumption Agreement shall have been delivered to the Agent, the Owner Trustee, the Lessee and the Initial Lender. All costs and expenses of the Agent and the assignor and assignee incurred in connection with any Bank Assignment shall be borne by the Owner Trustee (with funds provided by the Lessee as Supplemental Rent) and not by the assignor or any assignee. (e) By executing and delivering an Assignment and Assumption Agreement, the assignor and assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assignor makes no representation or warranty and assumes no responsibility with respect to any warranties or representations made in or in connection with this Participation Agreement, the other Operative Agreements or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value or this Participation Agreement, the other Operative Agreements or any such other instrument or document; (ii) the assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Owner Trustee or the Lessee or the performance or observance by the Owner Trustee or the Lessee of any of their respective obligations under this Participation Agreement, the other Operative Agreements or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Participation Agreement, the other Operative Agreements and such other instruments, documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement and to purchase such interest; (iv) such assignee shall, independently and without reliance upon the Agent, or any of its Affiliates, or the assignor and based on such agreements, 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 Participation Agreement and the other Operative Agreements; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Participation Agreement, the other Operative Agreements and any other instrument or document furnished pursuant hereto or thereto as are delegated to the Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto and to enforce its respective rights and interests in and under this Participation Agreement, the other Operative Agreements, the Loans and the Notes; (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Participation Agreement and the other Operative Agreements are required to be performed by it as the assignee of the assignor; and (vii) such assignee covenants and agrees that prior to the date which is one year and one day after the payment in full of all outstanding Commercial Paper or other indebtedness of the Initial Lender, it will not institute against, or join any Person in instituting against, the Initial Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States relating to the Overall Transaction. (f) After any Bank Assignment by the Initial Lender (and the payment of all amounts owing to the Initial Lender in connection therewith), all rights of the Initial Lender set forth herein shall be deemed to be afforded to the Agent on behalf of the Bank Lenders instead of the Initial Lender.