Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower. (b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder. (c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto). (d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto. (f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Amtran Inc), Credit Agreement (Amtran Inc)
Participations and Assignments. Participations and Assignments
(aA) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto Borrower, Banks, and Agent and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, ; provided, however, that (i) such Bank's Borrower may not assign, transfer or delegate any of its rights, duties or obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to or the other parties hereto for Loan Documents without the performance prior written consent of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks. Banks shall continue to deal solely may assign, sell and directly with such Bank in connection with such Bank's rights and obligations under this Agreementtransfer their interests, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents only in accordance with this Paragraph 10.8.
(includingB) With the prior written consent of the Agent and the Borrower, without limitationnot to be unreasonably withheld, all any Bank may assign to one or more Eligible Assignees all, or a portion proportionate part of all, of its Commitmentinterests, the Loans owing to it rights and obligations under this Agreement and the Note or Notes held by it)other Loan Documents; provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a assigning Bank's interests, rights and obligations under this Agreement, (Aii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event not be less than the lesser of (A) the entire amount of such Bank's Loans or (B) the principal amount of $5,000,000, and in 3,000,000 or an integral multiples multiple of $1,000,000 thereafterin excess thereof, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute and and/or deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or the Notes subject to such assignment andassignment, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the 3,500 payable to Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date "Effective Date" specified in such the Assignment and Acceptance, which "Effective Date," unless Agent otherwise agrees, shall be not earlier than five Business Days after the date of acceptance and recording by Agent (xprovided, however, that, as between the assigning Bank and the assignee thereunder only, the effective date shall be the effective date of execution and delivery as between such Persons as specified in the Assignment and Acceptance), (A) the assignee thereunder shall be a party hereto Bank under this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the interests, rights and obligations of a Bank hereunder and (yB) the assigning Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptance, relinquish its rights and be released from its contractual obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an the assigning Bank's interests, rights and obligations under this Agreement, such assigning Bank shall cease to be a party heretoBank under this Agreement). Each Bank shall, in a reasonably prompt fashion after it has engaged in any material discussions with an Eligible Assignee that may lead to an assignment referred to in this Paragraph 10.8, notify Agent and Borrower of the identity of such Eligible Assignee so that they will have sufficient time to determine if they are willing to consent.
(dC) The Agent By executing and delivering an Assignment and Acceptance, the assigning Bank thereunder and the Eligible Assignee thereunder shall maintain at be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignee is an Eligible Assignee; (ii) other than as provided in the Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any representations, warranties or other statements made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any Collateral; (iii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any Subsidiary or the performance or observance by Borrower or any Subsidiary of any of its address designated on the signature pages hereof obligations under this Agreement or any other Loan Document; (iv) such assignee confirms that it has received a copy of each this Agreement, together with copies of the most recent Financial Statements and such other agreements, documents, instruments, certificates and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance delivered Acceptance; (v) such assignee will independently and without reliance upon Agent, such assigning Bank or any other Bank and based on such agreements, documents, instruments, certificates 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 and accepted the other Loan Documents; (vi) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Bank; and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries viii) such assignee makes loans in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes ordinary course of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeits business.
(eD) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeEligible Assignee and the required processing and recordation fee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completedis duly completed and is in the required form, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Banks and Borrower. Within ten five Business Days after its receipt of any such noticenotice from Agent, the Borrower, at its own expense, shall execute and deliver to the Agent Agent, in exchange for the surrendered Note or Notes Notes, a new Note or Notes payable to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to appropriate principal amount(s) evidencing such Assignment assignee's assigned Loans and Acceptance Commitments, and, if the assigning assignor Bank has retained a Commitment hereunderportion of its Loans and Commitments, a new Note or Notes payable to the order of such assignor in the assigning Bank in an amount equal to the Commitment appropriate principal amount(s) evidencing such assignor's Loans and Commitments retained by it hereunderit. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, Note(s) shall be dated the effective date of such Assignment and Acceptance the surrendered Note(s) which they replace and shall otherwise be in substantially the form of Exhibit C heretothe surrendered Notes, as appropriate.
(fE) The Each Bank may, without the consent of Borrower, any Subsidiary or Agent, sell participations to one or more banks in all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Loans or Commitments) held by it; provided, however, that (i) such Bank shall remain a Bank for all purposes of this Agreement and the transferee of such participation shall not constitute a Bank under this Agreement, (ii) such Bank's obligations under this Agreement shall remain unchanged, (iii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iv) the participating banks or other entities shall be entitled to the benefit of the provisions contained in Paragraphs 2.9 and 2.10 to the same extent as if they were Banks, except that no such participant shall be entitled to receive any greater benefit pursuant to Paragraph 2.9 than its assignor Bank would have been entitled to receive with respect to the rights participated, and (v) Borrower, Subsidiaries, Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's interests, rights and obligations under this Agreement, and such Bank-shall retain the sole right to enforce the obligations of Borrower and its Subsidiaries relating to the Loans and to approve any amendment, modification or waiver of any provision of this Agreement, provided that such participation agreement may provide that such Bank will not agree to any amendment, modification or waiver of this Agreement or the other Loan Documents, without the consent of such participant, that would (A) reduce the principal or the rate of interest payable by Borrower on any Loan or reduce any fees payable by Borrower, (B) postpone any date fixed for the payment of principal of or interest on the Loans or any fees payable by Borrower, (C) increase any Commitment of any Bank or subject any Bank to any obligation to make Loans, or (D) amend Paragraph 10.3 or any other provision of this Agreement requiring the consent or other action of all Banks.
(F) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03Paragraph 10.8, disclose to the assignee or participant or proposed assignee or participant any public information relating to Borrower or any Subsidiary, the Collateral or the Loan Documents furnished to such Bank by or on behalf of the Borrower andor any Subsidiary; provided, provided that however, that, prior to any such disclosure, each such assignee or participant or proposed assignee or participant executes shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of any non-public information received from such Bank.
(G) If (i) any Bank has demanded compensation under Paragraph 2.9 in an aggregate amount exceeding $5,000 during any calendar year, (ii) it becomes unlawful, impossible or impractical for any Bank to make or continue to maintain Eurodollar Loans pursuant to Paragraph 2.10 and such circumstance is not applicable to NationsBank, or (iii) any Bank is or becomes insolvent or a confidentiality letterreceiver, conservator or similar authority is appointed for any Bank, then Agent and/or Borrower shall have the right, but not the obligation, upon notice to such Bank and Borrower or Agent, as applicable, to designate, with the consent of such assignee, an assignee for any such Bank, which assignee shall be an Eligible Assignee mutually satisfactory to Agent and Borrower, to purchase such Bank's Loans and Commitments and assume such Bank's obligations; provided, however, that Borrower shall have the right to designate any assignee for NationsBank. Within ten Business Days after any such notice to such Bank and Borrower or Agent, as applicable, such Bank shall be obligated to sell its Loans and Commitments, and such assignee shall be obligated to purchase such Loans and assume such Bank's obligations, pursuant to an Assignment and Acceptance. The purchase price therefor shall be an amount equal to the sum of (A) the outstanding principal amount of the Loans payable to such Bank, plus (B) all accrued and unpaid interest on such Loans, plus (C) Letter of Credit Interest, plus (D) all accrued and unpaid fees and other amounts due to such Bank pursuant to this Agreement.
(H) Notwithstanding anything to the contrary contained in this Paragraph 10.6, any other information relating Bank may at any time or from time to time assign as collateral all or any portion of its rights under this Agreement with respect to its Loans, Commitments and Notes to a Federal Reserve Bank. No such assignment shall release the Borrowerassigning Bank from its obligations under this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Accredo Health Inc), Distribution and Services Agreement (Accredo Health Inc)
Participations and Assignments. (a) This The Bank shall have the right at its own cost to grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans and Letters of Credit at any time and from time to time to one or more other Persons; provided that no such participation shall relieve the Bank of any of its obligations under this Agreement, and, provided, further that no such participant shall have any rights under this Agreement except as provided in this Section, and the Bank shall be binding upon have no obligation or responsibility to such participant. Any agreement pursuant to which such participation is granted shall provide that the granting Bank shall retain the sole right and inure responsibility to enforce the obligations of the Borrower under this Agreement and the other Loan Documents including, without limitation, the right to approve any amendment, modification or waiver of any provision of the Loan Documents, except that such agreement may provide that the Bank will not agree to any modification, amendment or waiver of the Loan Documents that would reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest. Any party to which such a participation has been granted shall have the benefits of Section 2.7 and Section 2.9 hereof. The Borrower authorizes the Bank and its assigns to disclose to any participant or prospective participant under this Section any financial or other information pertaining to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerSubsidiary.
(b) Any The Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it right at any time to sell, assign, transfer or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities negotiate all or a portion any part of its rights and obligations under this Agreement the Loan Documents (including, without limitation, all or a portion the indebtedness evidenced by the Notes then held by the Bank, together with an equivalent percentage of its Commitmentobligation to make Loans and participate in Letters of Credit) to one or more Persons pursuant to one or more assignment agreements in form and substance acceptable to the Bank, provided that so long as no Default or Event of Default has occurred and is continuing the Loans owing Borrower shall have consented in writing to it and the Note or Notes held by it); provided, however, that (i) each such assignment (such consent not to be unreasonably withheld). Any such assignee shall be become a holder of a uniformthe Obligations (and Commitments, and not a varying, percentage as applicable) assigned for all purposes hereunder to the extent of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreementthe Loan Documents it assumes and the assignee shall be released from its obligations, (A) and will have released its rights, under the amount Loan Documents to the extent of such assignment. The address for notices to such assignee shall be as specified in the Commitment assignment agreement executed by it. Promptly upon the effectiveness of the assigning Bank being assigned pursuant to each any such assignment agreement, the Borrower shall execute and deliver replacement Notes to the assignee and the assignor in the respective amounts of their Commitments (determined or assigned principal amounts, as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (Bapplicable) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) the parties to each reduction occasioned by such assignment shall execute and deliver (all such Notes to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder constitute “Notes” for all purposes of this Agreementthe Loan Documents). The Register shall be available for inspection by Borrower authorizes the Bank and its permitted assigns to disclose to any purchaser or prospective purchaser of an interest in the Loans and interest in Letters of Credit owed to it or its Commitments under this Section any financial or other information pertaining to the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeSubsidiary.
(ec) Upon The Bank or any permitted assignee may at any time pledge or grant a security interest in all or any portion of its receipt rights under this Agreement to secure obligations of an Assignment and Acceptance executed by an assigning the Bank and an or such assignee, together with including any Note such pledge or Notes subject grant to a Federal Reserve Bank, and this Section shall not apply to any such assignmentpledge or grant of a security interest; provided that no such pledge or grant of a security interest shall release the Bank or such assignee from any of its obligations hereunder or substitute any such pledgee or secured party for the Bank or such assignee as a party hereto; provided further, however, the Agent shall, if right of any such Assignment and Acceptance has been completed, pledgee or grantee (iother than any Federal Reserve Bank) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note further transfer all or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order any portion of the assigning Bank in an amount equal rights pledged or granted to the Commitment retained it, whether by it hereunder. Such new Note means of foreclosure or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notesotherwise, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose at all times subject to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrowerterms of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Accretive Health, Inc.), Credit Agreement (Accretive Health, Inc.)
Participations and Assignments. (a) This Agreement shall be binding upon Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and inure to the benefit has assets or capital of at least $100,000,000 (other than (i) a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto Loan and their respective successors and assignsalso such Lender’s Pro Rata Share of the Revolving Loans, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Million Dollars (b$5,000,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C B hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment andwithin three (3) Business Days after notice thereof. Notwithstanding the foregoing, a processing and recordation fee of $3,000, and (iv) any Bank may without the no consent of the Borrower or the Agent, assign Administrative Agent shall be required for any assignment to a Lender or an Affiliate of a Lender (provided that no assignment shall be made to any Affiliate of such Bank that is a bank Defaulting Lender or financial institution all of its rights and obligations under this Agreementwholly-owned subsidiaries). Upon such execution, delivery, acceptance and recording, from - 85 - DM3\2429630.8
(b) From and after the effective date specified in such Assignment and Acceptanceon which the conditions described above have been met, (xi) the assignee thereunder such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank Lender hereunder and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) a Term Loan Note in the principal amount of the Assignee’s Term Loan Commitment hereunder(and, as applicable, a new Term Loan Note to in the order principal amount of the assigning Bank in an amount equal to the Term Loan Commitment retained by it hereunderthe assigning Lender). Such new Each such Term Loan Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment assignment. Upon receipt by the assigning Lender of such Term Loan Note, the assigning Lender shall return to Borrower any prior Term Loan Note held by it.
(c) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement and Acceptance applicable promissory note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such Loan(s) and promissory note(s) shall otherwise be in substantially the form fully transferable as provided therein, and this Section shall not apply to any such pledge or assignment of Exhibit C a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(fd) The Banks maySubject to the last sentence in Section 13.9, any Lender may at any time (without any required consent) sell to one or more Persons (other than (i) a natural person or (ii) a Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) participating interests in its respective Loan or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations under this Agreement shall remain unchanged for all purposes, (b) Administrative Agent and Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (c) all amounts payable by Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. No Participant shall have any assignment direct or indirect voting rights under this Agreement except with respect to any event described in Section 12.1 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or proposed assignment 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 to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 2.13(d). Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 or 3.3 as if it were a - 86 - DM3\2429630.8 Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to this Section 10.03, disclose Sections 3.1 or 3.3 than would have been paid to the assignee participating Lender on such date if no participation had been sold and that each Participant complies with Section 3.3 as if it were an Assignee).
(e) Administrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of Lenders, the Pro Rata Share of each Lender and the portion of the Loan of each Lender and whether such Lender is the original Lender or participant or proposed assignee or participant the Assignee. No assignment shall be effective unless and until the Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in such Loan. Administrative Agent shall not incur any public information relating liability of any kind with respect to any Lender with respect to the maintenance of the Register. Upon the reasonable written request of Borrower, Administrative Agent will furnish a copy of the Register to the Borrower andAgent or Borrower (at the cost, provided that such proposed assignee or participant executes a confidentiality letterif any, any other information relating to the Borrower).
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Diversicare Healthcare Services, Inc.), Term Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. (a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto Borrower, Banks, and Agent and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, ; provided, however, that (i) such Bank's Borrower may not assign, transfer or delegate any of its rights, duties or obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to or the other parties hereto for Loan Documents without the performance prior written consent of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks. Banks shall continue to deal solely may assign, sell and directly with such Bank in connection with such Bank's rights and obligations under this Agreementtransfer their interests, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents only in accordance with this Paragraph 10.8.
(includingb) With the prior written consent of the Agent and the Borrower, without limitationany Bank may assign to one or more Eligible Assignees all, all or a portion proportionate part of all, of its Commitmentinterests, the Loans owing to it rights and obligations under this Agreement and the Note or Notes held by it)other Loan Documents; provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a assigning Bank's interests, rights and obligations under this Agreement, (Aii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event not be less than the lesser of (A) the entire amount of such Bank's Loans or (B) the principal amount of $5,000,000, and in 3,000,000 or an integral multiples multiple of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000excess thereof, (iii) no more than three (3) Banks may be parties hereto without first obtaining the prior written consent of the Agent and Borrower; and (iv) the parties to each such assignment shall execute and and/or deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or the Notes subject to such assignment andassignment, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the 2,500 payable to Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date "Effective Date" specified in such the Assignment and Acceptance, which "Effective Date, " unless Agent otherwise agrees, shall be not earlier than five Business Days after the date of acceptance and recording by Agent (xprovided, however, that, as between the assigning Bank and the assignee thereunder only, the effective date shall be the effective date of execution and delivery as between such Persons as specified in the Assignment and Acceptance), (A) the assignee thereunder shall be a party hereto Bank under this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the interests, rights and obligations of a Bank hereunder and (yB) the assigning Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptance, relinquish its rights and be released from its contractual obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an the assigning Bank's interests, rights and obligations under this Agreement, such assigning Bank shall cease to be a party heretoBank under this Agreement). Each Bank shall, in a reasonably prompt fashion after it has engaged in any material discussions with an Eligible Assignee that may lead to an assignment referred to in this Paragraph 10.8, notify Agent and Borrower of the identity of such Eligible Assignee so that they will have sufficient time to determine if they are willing to consent.
(dc) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment By executing and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of delivering an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, the assigning Bank thereunder and the Eligible Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignee is an Eligible Assignee; (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.other
Appears in 1 contract
Sources: Loan and Security Agreement (Clintrials Research Inc)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Borrowers shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document Agent and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerLenders.
(b) Any Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank may sell in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans hereunder to its parent and/or to any bankaffiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, financial institution carry or institutions transfer Loans at, to or other entityfor the account of, and any of its branch offices or the office of an affiliate of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Lender except to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they transfer would have had if such participant or participants were the Bank making the Loans result in increased costs to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default is outstanding) with the Agentconsent of Borrowers, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Notes. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500) to be paid by it); providedthe assignee, however(ii) no such assignment shall be for less than Twenty Million Dollars ($20,000,000) or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time Within Two (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e2) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such noticedemand by Agent, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(e) Each Lender may, with the prior written consent of Agent, but without the consent of any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that if such Lender obtains the consents required under this clause (e) then (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement.
(f) The Banks mayEach Lender agrees that, without the prior written consent of Borrowers and Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Advance, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Agent or such Lender may disclose any information in its possession regarding Borrowers, their finances and/or Collateral. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any assignment other Loan Document furnished pursuant hereto; (ii) such assigning Lender makes no representation or participation or proposed assignment or participation pursuant to this Section 10.03, disclose warranty and assumes no responsibility with respect to the assignee financial condition of the Borrowers or participant the performance or proposed assignee observance by the Borrowers of any of their obligations under this Agreement or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information relating as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the Borrowertime, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
Appears in 1 contract
Participations and Assignments. (a) This The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, provided except that neither the Borrower nor any other Credit Party may not, without the prior consent assign or otherwise transfer any of the Banks, assign its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or under otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) of this Section (and any other Loan Document attempted assignment or transfer by any party hereto shall be null and the Banks void). Nothing in this Agreement, expressed or implied, shall not be obligated construed to make confer upon any Loan hereunder to any entity Person (other than the Borrowerparties hereto, their respective successors and assigns permitted hereby and Participants to the extent provided in paragraph (d) of this Section) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank Lender may sell at any time assign to one or more assignees (any banksuch assignee, financial institution an “Assignee”) all or institutions or other entity, and any portion of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inLender’s Pro Rata Share of the Revolving Commitments, the Loans and such Bank's its other rights and benefits under this Agreementobligations hereunder, with the prior written consent of Administrative Agent, Issuing Bank and, so long as no Default or Event of Default has occurred and is continuing, with the prior written consent of Borrowers (all of which consents shall not be unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree, any such assignment shall be in a minimum aggregate amount equal to $5,000,000 or, if less, the Notes remaining Revolving Commitment and Loans held by the Guaranties, assigning Lender. Borrowers and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank assigning Lender in connection with the interests so assigned to an Assignee until Administrative Agent shall have received an Assignment Agreement executed, delivered and fully completed by the applicable parties thereto and a processing fee paid by such Bank's rights and obligations under this Agreement, and (v) such Bank applicable parties of $3,500.00. No assignment hereunder shall not grant to its participant any rights to consent or withhold consent be permitted if to any action taken by such Bank or Ineligible Assignee. Any attempted assignment not made in accordance with this Section 10.1(b) shall be treated as the Agent sale of a participation under this Agreement other than action requiring the consent of all of the Banks hereunderSection 10.1(d).
(c) Each Bank mayFrom and after the date on which the conditions described in Section 10.1(b) above have been met, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment Assignee shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant deemed automatically to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank hereunder Lender hereunder, and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) a Revolving Note in the principal amount of the Assignee’s Revolving Commitment hereunder(and, as applicable, a new Revolving Note to in the order principal amount of the assigning Bank in an amount equal to the Revolving Commitment retained by it hereunderthe assigning Lender). Such new Each such Revolving Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment assignment. Upon receipt by the assigning Lender of such Revolving Note, the assigning Lender shall return to Borrowers any prior Revolving Note held by it.
(d) Any Lender may at any time (without any required consent) sell to one or more Persons (other than a Person that is an Ineligible Assignee) participating interests in its respective Revolving Commitment and Acceptance Loans or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations hereunder shall remain unchanged for all purposes, (b) Administrative Agent and Borrowers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder and (c) all amounts payable by Borrowers shall be determined as if such Lender had not sold such participation and shall otherwise be paid directly to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in substantially the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of Exhibit C the United States Treasury Regulations. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 11.4 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. Each Borrower agrees that if amounts outstanding hereunder 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 hereunder to the same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 11.21. Each Borrower agrees that each Participant shall be entitled to the benefits of Section 2.19 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to Section 2.19 than would have been paid to the participating Lender on such date if no participation had been sold and that each Participant complies with Section 2.19 as if it were an Assignee).
(e) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights hereunder and applicable Revolving Note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such Loans and Revolving Note(s) shall be fully transferable as provided therein, and this Section 10.1 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) The Banks mayAdministrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of Lenders, the Pro Rata Share of each Lender and the portion of the Revolving Commitment and the Loans of each Lender and whether such Lender is the original Lender or the Assignee. All records of transfer of a Lender’s interest in connection the Register shall be conclusive, absent manifest error, as to the ownership of the interests in such Revolving Commitment and the Loans. Administrative Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register or for any failure to ensure that any assignment is made in accordance with the terms hereof. Upon the reasonable written request of Borrower Representative, Administrative Agent will furnish a copy of the Register to Borrower Representative or participation or proposed assignment or participation pursuant another Borrower (at the cost, if any, to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the BorrowerBorrowers).
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank Lender may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, and its interest in the Guaranties) provided that (i) each such assignment Lender's obligations under this Agreement (including without limitation, its Commitment to lend to the Company hereunder) shall be of a uniform, and not a varying, percentage of all rights and obligationsremain unchanged, (ii) except such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of its Note for all purposes under this Agreement, and (iv) the Company, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in the case of an assignment of all of a Bankconnection with such Lender's rights and obligations under this Agreement.
(i) Any Lender may assign, transfer and negotiate all or a portion of its Commitment, the Notes held by it, and its interest in the Guaranties to any affiliate of such Lender, to any other Lender, or, following the occurrence and during the continuance of a Default, to any financial institution or institutions, without the consent of any other Lender, the Agent or the Company and (Aii) any Lender may otherwise so assign, transfer and negotiate such Lender's interest, with the amount consent of the Commitment of Company, which consent shall not be unreasonably withheld, and the assigning Bank being assigned pursuant Agent to any financial institution or institutions, provided, however, that each such assignment (determined of less than all of a Lender's commitment shall be in the minimum amount of $10,000,000 and integral multiples of $5,000,000. In the case of any assignment, transfer or negotiation, the assignee, transferee or recipient shall have, to the extent of such assignment, transfer or negotiation, the same rights, benefits and obligations as of the date of the Assignment and Acceptance if it were a Lender with respect to such assignment) shall in no event be less than $5,000,000Commitment or Notes, and in integral multiples of $1,000,000 thereafterincluding, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignmentwithout limitation, the amount right to approve or disapprove actions which, in accordance with the terms hereof, require the approval of Majority Lenders and the Commitment obligation to fund Loans and Letter of the assigning Bank shall in no event be less than $5,000,000, (iii) the Credit Advances pursuant to Article III. The parties to each such assignment shall execute and deliver to the Agent, for its acceptance Agent an Acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeAssignment, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, The assigning Lender shall execute and deliver pay to the Agent an assignment fee in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note $3,500 for administration of each assignment, transfer or negotiation of its Commitment and Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Perrigo Co)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that the Borrower may nothowever that, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks Borrowers shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights right to assign or delegate their obligations and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations duties under this Agreement shall remain unmodified or any other Credit Documents or any interest therein except with the prior written consent of Agent and fully effective and enforceable against such Bank, (iiLenders. Notwithstanding Section 10.7(c) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, nothing herein shall restrict, prevent or prohibit any Lender from (ivi) the Borrower, the Agent and the other Banks shall continue pledging its Loans hereunder to deal solely and directly with such a Federal Reserve Bank in connection with support of borrowings made by such Bank's rights and obligations under this Agreement, and Lender from such Federal Reserve Bank or (vii) granting assignments or participations in such Bank shall not grant Lender’s Loans hereunder to its participant any rights to consent or withhold consent parent and/or to any action taken by affiliate of such Bank Lender or to any existing Lender or affiliate thereof. Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the Agent under this Agreement other than action requiring office of an affiliate of such Lender except to the consent of all of the Banks hereunder.
(c) extent such transfer would result in increased costs to Borrower. Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default is outstanding) with the Agentconsent of Borrowers, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Notes. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in its books and records, an Assignment and Acceptance, together with any 116549.01103/127129470v.6 Note or Notes held subject to such assignment and a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500) to be paid by it); providedthe assignee, however(ii) no such assignment shall be for less than Twenty Million Dollars ($20,000,000) or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 of this Agreement which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten two (2) Business Days after its receipt of such noticedemand by Agent, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks the Note or Notes subject to such assignments. Each Lender may, with the prior written consent of Agent, but without the consent of any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that if such Lender obtains the consents required under this clause (e) then (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement. Each Lender agrees that, without the prior written consent of Borrowers and Agent, it will not make any assignment or sell a participation hereunder in any manner or proposed assignment under any circumstances that would require registration or participation pursuant to this Section 10.03qualification of, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letterfilings in respect of, any Advance, Note or other information relating to Obligation under the Borrowersecurities laws of the United States of America or of any jurisdiction.
Appears in 1 contract
Sources: Loan and Security Agreement (Nicholas Financial Inc)
Participations and Assignments. The Company hereby acknowledges ------------------------------ and agrees that a Bank may at any time: (aA) This grant participations in all or any portion of its Loans, participation in any Letters of Credit, or Note or of its right, title and interest therein or in or to this Agreement shall be binding upon and inure (collectively, "Participations") to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder lending office or to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it"Participants"); provided, however, that that: (i) each such assignment all amounts payable by the Company hereunder shall be of a uniform, determined as if such Bank had not granted such Participation; and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned any agreement pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) which any Bank may grant a Participation: (x) shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Company hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provisions of this Agreement; (y) such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement without the consent of the Borrower Participant if such modification, amendment or waiver would reduce the Agent, assign to principal of or rate of interest on the Loans or postpone the date fixed for any Affiliate payment of principal of or interest on the Loan; and (z) shall not relieve such Bank that is a bank or financial institution all of from its rights and obligations under this Agreement. Upon such executionobligations, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder which shall be a party hereto andremain absolute, to the extent that rights make Loans and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations participate in Letters of a Bank hereunder Credit hereunder; and (yb) assign, with the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case prior written consent of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and notice to the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeCompany, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver payment to the Agent of a $1,500 transfer fee, up to forty-nine percent (49%) of its Loans, participations in exchange for the surrendered Note or Notes a new Note to the order Letters of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment Credit, and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C heretoCommitment.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Jones Cable Income Fund 1-B LTD)
Participations and Assignments. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of of, the parties hereto Borrower, the Agent, the Banks and their respective successors and assigns, provided except that the Borrower may not, without the prior consent of the Banks, not assign or transfer its rights or obligations hereunder. Each Bank may assign, or sell participations in, all or any part of its Commitment or any Loan to another bank or other entity, in which event (i) in the case of an assignment, upon notice thereof by the Bank to the Borrower with a copy to the Agent, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would have if it were a Bank hereunder; and (ii) in the case of a participation, the participant shall have no rights under the Loan Documents and all amounts payable by the Borrower under ARTICLE ll shall be determined as if such Bank had not sold such participation. The agreement executed by such Bank with an assignee shall be in the form of SCHEDULE 9.10; and the agreement executed by such Bank with a participant shall not give the participant the right to require such Bank to take or omit to take any action hereunder except action directly relating to (i) the extension of a payment date with respect to any portion of the principal of or interest on any amount outstanding hereunder allocated to such participant, (ii) the reduction of the principal amount outstanding hereunder or under (iii) the reduction of the rate of interest payable on such amount or any other Loan Document and the Banks shall not be obligated to make any Loan amount of fees payable hereunder to a rate or amount, as the case may be, below that which the participant is entitled to receive under its agreement with such Bank. Such Bank may furnish any entity other than information concerning the BorrowerBorrower in the possession of such Bank from time to time 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 confidentiality of such information.
(b) Any In addition to the assignments and participations permitted under PARAGRAPH (a) above, any Bank may sell to assign and pledge all or any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the portion of its Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Note to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) any affiliate of such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, Bank or (ii) such any Federal Reserve Bank shall remain solely responsible as collateral security pursuant to Regulation A of the other parties hereto for Board of Governors of the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent Federal Reserve System and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken Operating Circular issued by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each Federal Reserve Bank. No such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of release the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto)hereunder.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Transmation Inc)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Borrowers shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document Agent and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerLenders.
(b) Any Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank may sell in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans hereunder to its parent and/or to any bankaffiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, financial institution carry or institutions transfer Loans at, to or other entityfor the account of, and any of its branch offices or the office of an affiliate of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Lender except to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they transfer would have had if such participant or participants were the Bank making the Loans result in increased costs to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default is outstanding) with the Agentprior written consent of Borrowers, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Notes. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500) to be paid by it); providedthe assignee, howeverand (ii) no such assignment shall be for less than Twenty Million Dollars ($20,000,000) or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time Within five (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e5) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such noticedemand by Agent, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(e) Each Lender may, with the prior written consent of Agent, but without the consent of any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that if such Lender obtains the consents required under this clause (e) then (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement.
(f) The Banks Each Lender agrees that, without the prior written consent of Borrowers and Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Advance, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Agent or such Lender may, but only after acquiring applicable confidentiality agreements customarily used by Agent or such Lender (each a “Confidentiality Agreement”), disclose any information in its possession regarding Borrowers, their finances and/or Property; provided, however, if no Default or Event of Default is outstanding, each such Confidentiality Agreement shall be in form and substance reasonably acceptable to Borrowers. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any assignment other Loan Document furnished pursuant hereto; (ii) such assigning Lender makes no representation or participation or proposed assignment or participation pursuant to this Section 10.03, disclose warranty and assumes no responsibility with respect to the assignee financial condition of Borrowers or participant the performance or proposed assignee observance by Borrowers of any of their obligations under this Agreement or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information relating as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the Borrowertime, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
Appears in 1 contract
Sources: Loan and Security Agreement (CompuCredit Holdings Corp)
Participations and Assignments. 5.1 PARTICIPATIONS Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other financial institutions (a"Participants") This Agreement shall be binding upon and inure participating interests in any obligation owing to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or such Lender under any other Loan Document and Document. In the Banks shall not be obligated to make event of any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any banksuch sale, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such BankLender's obligations under this Agreement the Loan Documents to the other parties to the Loan Documents shall remain unmodified and fully effective and enforceable against such Bankunchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligationsits obligations under the Loan Documents, (iii) such Bank shall Lender shall, for all purposes under the Loan Documents, remain the holder of its Notes for all purposes any promissory note, debenture or other evidence of this Agreementindebtedness under the Loan Documents, and (iv) the BorrowerBorrowers, the Agent Lenders and the other Banks Administrative Lenders shall continue to deal solely and directly with such Bank Lender in connection with such BankLender's rights and obligations under this Agreement, and (v) such Bank the Loan Documents. Participants shall not grant have no rights under the Loan Documents except as provided below. No Lender shall sell any participating interest under which the Participant shall have any right to its participant vote on any rights to consent amendment or withhold consent to waiver of any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it)Loan Document; provided, however, that any agreement under which any Lender sells a participating interest to a Participant may require the selling Lender to obtain the consent of such Participant in order for such Lender to agree or consent to any action described in any of items (a) -- (i) each such assignment shall be of Section 3. No agreement under which any Lender sells a uniformparticipating interest to a Participant may permit the Participant to transfer, pledge, assign, sell participations in or otherwise encumber its participating interest. If any amount outstanding under the Loan Documents is due and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment andunpaid, a processing Participant may have and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its exercise set off rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto)applicable Loan Document so provides.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(bA) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent participations in its Pro Rata Share of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to another Person (each such Person, a "Participant Bank") or, with the Borrower hereunderprior approval of the Agent, providedwhich approval shall not be unreasonably withheld, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible assign up to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder 100% of its Notes for all purposes Pro Rata Share of this Agreementall, but not less than all, of the Loans in equal Pro Rata Shares as to each Loan (iv) but in the Borrowercase of assignments, in an amount not less than the Agent lesser of $1,000,000.00 and the other Banks shall continue to deal solely and directly with outstanding Loans held by such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent aggregate of all of the Banks hereunder.
(cLoans assigned) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it)another Person; provided, however, that (A) the Agent, and the Borrowers shall only be obligated to deal with the Banks and not any of the Participant Banks; (B) any Bank that sells a participation in the Loans shall be obligated to deal with its Participant Banks with respect to all matters relating to the Loans and this Agreement; (C) any Bank that sells a participation in the Loans shall perform all obligations of such Bank under this Agreement and shall remain responsible for fulfilling its obligations hereunder; and (D) no such Participant Bank shall have any voting rights or rights to consent to approve any matter hereunder; provided further, however, that in addition to the assignments and participations permitted under this Section 8.14, (i) each such assignment shall be notwithstanding any provisions in this Section 8.14, the Sale and Assignment Agreement dated as of a uniformSeptember 11, 1996 between CoreStates and NBD is permitted hereunder, and not a varying, percentage of all rights and obligations, (ii) except in any Bank may assign and pledge, up to 100% of its Pro Rata Share of all, but not less than all, of its Loans and Notes to (1) with the case prior approval of the Agent, which approval shall not be unreasonably withheld, any other Bank, (2) any affiliate of such Bank or (3) any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circuit issued by such Federal Reserve Bank without obtaining the Borrowers' approval. No such sale or assignment shall release the selling or assigning Bank from its obligations hereunder; provided, however that if the Agent consents to an assignment by a Bank of all or a part of a Bank's rights and obligations under this Agreement, (A) the amount its Pro Rata Share of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined Loans as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000set forth above, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of then the assigning Bank shall in no be released from its obligations hereunder with respect to the part of the Loans sold by such assigning Bank. In the event be less than $5,000,000that any Bank assigns all or a portion of its Pro Rata Share of its Commitment, (iii) its Term Note and its Second Term Note as permitted under this Section 8.14, the parties to each such assignment shall Borrowers will execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance replacement Notes in the form of Exhibit C 2.3 hereto upon the request of the Agent and against return of the Notes being replaced.
(an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, B) Any Second Revolving Credit Lender that is not a processing and recordation fee of $3,000, and (iv) any Bank may without the consent sell participations in its Pro Rata Share of the Borrower or Second Revolving Credit to a Participant Bank or, with the prior approval of the Agent, which approval shall not be unreasonably withheld, assign up to any Affiliate of such Bank that is a bank or financial institution all 100% of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after Pro Rata Share of the effective date specified in such Assignment and Acceptance, Second Revolving Credit (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, but in the case of assignments, in an Assignment and Acceptance covering all amount not less than the lesser of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks $1,000,000.00 and the Second Revolving Credit Advances or Second Revolving Credit Commitment ofheld by or attributable to such Second Revolving Credit Lender) to another Person; provided, and principal amount of however, that (1) the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorAgent, and the Borrower, Borrowers shall only be obligated to deal with the Agent Second Revolving Credit Lender and not any of the Banks may treat each Person whose name is recorded Participant Banks; (2) any non-Bank Second Revolving Credit Lender that sells a participation in the Register as a Bank hereunder for Loans or assigns an interest in its Commitment shall be obligated to deal with its Participant Banks with respect to all purposes of matters relating to the Second Revolving Credit and this Agreement. The Register ; (3) any non-Bank Second Revolving Credit Lender that sells a participation in the Second Revolving Credit shall be available perform all obligations of such Second Revolving Credit Lender under this Agreement and shall remain responsible for inspection by fulfilling its obligations hereunder; and (4) no such Participant Bank shall have any voting rights or rights to consent to approve any matter hereunder; provided, however, that in addition to the Borrower or any Bank at any reasonable time assignments and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completedparticipations permitted under this Section 8.14, (i) accept such Assignment any non-Bank Second Revolving Credit Lender may assign and Acceptancepledge, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof up to the Borrower. Within ten Business Days after 100% of its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order Pro Rata Share of the assigning Bank in an amount equal Second Revolving Credit and its Second Revolving Credit Notes to (1) with the Commitment retained by it hereunder. Such new Note or Notes prior approval of the Agent, which approval shall not be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letterunreasonably withheld, any other information relating to Second Revolving Credit Lender, (2) any affiliate of such Second Re-
3.1 hereto upon the Borrowerrequest of the Agent and against return of the Notes being replaced.
Appears in 1 contract
Sources: Loan Agreement (NCC Industries Inc)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Borrowers shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document Agent and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerLenders.
(b) Any Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank may sell in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans hereunder to its parent and/or to any bankaffiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, financial institution carry or institutions transfer Loans at, to or other entityfor the account of, and any of its branch offices or the office of an affiliate of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Lender except to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they transfer would have had if such participant or participants were the Bank making the Loans result in increased costs to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default is outstanding) with the Agentconsent of Borrowers, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement and the Notes; provided that ▇▇▇▇▇ Fargo Bank, N.A. may assign to one or more banks or other financial institutions up to fifty percent (including, without limitation, all or a portion 50%) of its CommitmentCommitment as of the date hereof without the prior written consent of Lenders or Borrowers. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the Loans owing to it terms hereof) and the recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of $3,500 to be paid by it); providedthe assignee, however(ii) no such assignment shall be for less than $10,000,000 or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted Within 10 days after demand by it and a register for the recordation of the names and addresses of the Banks and the Commitment ofAgent, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(e) Each Lender may, with the prior written consent of Agent, but without the consent of any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that if such Lender obtains the consents required under this clause (e) then (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement.
(f) The Banks mayEach Lender agrees that, without the prior written consent of Borrowers and Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Advance, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Agent or such Lender may disclose any information in its possession regarding Borrowers, their finances and/or Property. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any assignment other Loan Document furnished pursuant hereto; (ii) such assigning Lender makes no representation or participation or proposed assignment or participation pursuant to this Section 10.03, disclose warranty and assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or participant 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 proposed not taking action under this Agreement; (v) such assignee or participant any public information relating appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
(h) Notwithstanding anything in this Agreement to the contrary, under no circumstances shall Agent or any Lender provide any information regarding this Agreement (including related documents), the Receivables, the financial statements, affairs, policies, or business operations of Borrower andto any Affiliate or otherwise related company that competes with Borrower or is engaged in the business of consumer finance lending outside the ordinary course of Agent’s or such Lender’s business in administering loans in such Person’s portfolio. Without limiting the generality of the preceding sentence, provided that such proposed assignee Agent and Lenders shall not disclose any information about Borrower of any kind or participant executes a confidentiality lettercharacter to ▇▇▇▇▇ Fargo Financial Resources, Inc., ▇▇▇▇▇ Fargo Financial, or any other information relating consumer finance company outside the ordinary course of Agent’s or such Lender’s business in administering loans in such Person’s portfolio; provided, however, prior to the Borroweroccurrence of an Event of Default, Agent shall not disclose any customer specific information to such Affiliates.
Appears in 1 contract
Sources: Loan and Security Agreement (1st FRANKLIN FINANCIAL CORP)
Participations and Assignments. (aA) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto Borrower, Banks, and Agent and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, ; provided, however, that (i) such Bank's Borrower may not assign, transfer or delegate any of its rights, duties or obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to or the other parties hereto for Loan Documents without the performance prior written consent of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks. Banks shall continue to deal solely may assign, sell and directly with such Bank in connection with such Bank's rights and obligations under this Agreementtransfer their interests, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents only in accordance with this Paragraph 9.8.
(includingB) With the prior written consent of the Agent and the Borrower, without limitationnot to be unreasonably withheld, all any Bank may assign to one or more Eligible Assignees all, or a portion proportionate part of all, of its Commitmentinterests, the Loans owing to it rights and obligations under this Agreement and the Note or Notes held by it)other Loan Documents; provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a assigning Bank's interests, rights and obligations under this Agreement, (Aii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event not be less than the lesser of (A) the entire amount of such Bank's Loans or (B) the principal amount of $5,000,000, and in 3,000,000 or an integral multiples multiple of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000excess thereof, (iii) no more than three (3) Banks may be parties hereto without first obtaining the prior written consent of the Agent and Borrower; and (iv) the parties to each such assignment shall execute and and/or deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or the Notes subject to such assignment andassignment, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the 2,500 payable to Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date "Effective Date" specified in such the Assignment and Acceptance, which "Effective Date," unless Agent otherwise agrees, shall be not earlier than five Business Days after the date of acceptance and recording by Agent (xprovided, however, that, as between the assigning Bank and the assignee thereunder only, the effective date shall be the effective date of execution and delivery as between such Persons as specified in the Assignment and Acceptance), (A) the assignee thereunder shall be a party hereto Bank under this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the interests, rights and obligations of a Bank hereunder and (yB) the assigning Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptance, relinquish its rights and be released from its contractual obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an the assigning Bank's interests, rights and obligations under this Agreement, such assigning Bank shall cease to be a party heretoBank under this Agreement). Each Bank shall, in a reasonably prompt fashion after it has engaged in any material discussions with an Eligible Assignee that may lead to an assignment referred to in this Paragraph 9.8, notify Agent and Borrower of the identity of such Eligible Assignee so that they will have sufficient time to determine if they are willing to consent.
(dC) The Agent By executing and delivering an Assignment and Acceptance, the assigning Bank thereunder and the Eligible Assignee thereunder shall maintain at be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignee is an Eligible Assignee; (ii) other than as provided in the Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any representations, warranties or other statements made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any Collateral; (iii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any Subsidiary or the performance or observance by Borrower or any Subsidiary of any of its address designated on the signature pages hereof obligations under this Agreement or any other Loan Document; (iv) such assignee confirms that it has received a copy of each this Agreement, together with copies of the most recent Financial Statements and such other agreements, documents, instruments, certificates and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance delivered Acceptance; (v) such assignee will independently and without reliance upon Agent, such assigning Bank or any other Bank and based on such agreements, documents, instruments, certificates 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 and accepted the other Loan Documents; (vi) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Bank; and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries viii) such assignee makes loans in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes ordinary course of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeits business.
(eD) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeEligible Assignee and the required processing and recordation fee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completedis duly completed and is in the required form, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.to
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Specialty Care Network Inc)
Participations and Assignments. Each Borrower hereby acknowledges and agrees that any Bank may at any time: (a) This grant participations in all or any portion of its Note or of its right, title and interest therein or in or to this Agreement shall be binding upon and inure (collectively, "Participations") to any other lending office of such Bank or, with the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the BanksBorrowers (not to be unreasonably withheld), assign its rights or obligations hereunder or under to any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it"Participants"); provided, however, that that: (i) all amounts payable by the Borrowers hereunder shall be determined as if such Bank had not granted such Participation; and (ii) any agreement pursuant to which such Bank may grant a Participation: (x) shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrowers hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provisions of this Agreement; and (y) such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement without the consent of the Participant if such modification, amendment or waiver would reduce the principal of or rate of interest on any Loan or postpone the date fixed for any payment of principal of or interest on any Loan or increase the Aggregate Loan Commitment or release any of the Collateral; and (b) assign any or all of its obligations under this Agreement and the Loan Documents (but only with the consent of the Parent and the Administrative Agent which consent shall not be unreasonably withheld), provided that each such assignment shall be in an amount of a uniform, at least $5,000,000; and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as by a Bank of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafterits Note or a portion thereof, or Loan Commitment or a portion thereof shall be made in such lesser amount as manner so that the Agent may consent same portion of its Loans, Note and Loan Commitment is assigned to and (B) after giving effect to the respective assignee. Upon each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) pay the parties to each such Administrative Agent an assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto)3,500.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Eplus Inc)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Borrowers shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document Agent and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerLenders.
(b) Any Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank may sell in support of borrowings made by such Lender from such Federal Reserve Bank or (ii) granting assignments or participations in such Lender’s Loans hereunder to its parent and/or to any bankaffiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, financial institution carry or institutions transfer Loans at, to or other entityfor the account of, and any of its branch offices or the office of an affiliate of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Lender except to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they transfer would have had if such participant or participants were the Bank making the Loans result in increased costs to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default is outstanding) with the Agentconsent of Borrowers, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement and the Notes; provided that ▇▇▇▇▇ Fargo Preferred Capital, Inc. may assign to one or more banks or other financial institutions up to fifty percent (including, without limitation, all or a portion 50%) of its CommitmentCommitment as of the date hereof without the prior written consent of Lenders or Borrowers. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the Loans owing to it terms hereof) and the recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of $3,500 to be paid by it); providedthe assignee, however(ii) no such assignment shall be for less than $10,000,000 or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted Within 10 days after demand by it and a register for the recordation of the names and addresses of the Banks and the Commitment ofAgent, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(e) Each Lender may, with the prior written consent of Agent, but without the consent of any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that if such Lender obtains the consents required under this clause (e) then (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement.
(f) The Banks mayEach Lender agrees that, without the prior written consent of Borrowers and Agent, it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Advance, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Agent or such Lender may disclose any information in its possession regarding Borrowers, their finances and/or Property. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any assignment other Loan Document furnished pursuant hereto; (ii) such assigning Lender makes no representation or participation or proposed assignment or participation pursuant to this Section 10.03, disclose warranty and assumes no responsibility with respect to the financial condition of the Borrowers or the performance or observance by the Borrowers of any of their obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or participant 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 proposed not taking action under this Agreement; (v) such assignee or participant any public information relating appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
(h) Notwithstanding anything in this Agreement to the contrary, under no circumstances shall Agent or any Lender provide any information regarding this Agreement (including related documents), the Receivables, the financial statements, affairs, policies, or business operations of Borrower andto any Affiliate or otherwise related company that competes with Borrower or is engaged in the business of consumer finance lending outside the ordinary course of Agent’s or such Lender’s business in administering loans in such Person’s portfolio. Without limiting the generality of the preceding sentence, provided that such proposed assignee Agent and Lenders shall not disclose any information about Borrower of any kind or participant executes a confidentiality lettercharacter to ▇▇▇▇▇ Fargo Financial Resources, Inc., ▇▇▇▇▇ Fargo Financial, or any other information relating consumer finance company outside the ordinary course of Agent’s or such Lender’s business in administering loans in such Person’s portfolio; provided, however, prior to the Borroweroccurrence of an Event of Default, Agent shall not disclose any customer specific information to such Affiliates.
Appears in 1 contract
Sources: Loan and Security Agreement (1st FRANKLIN FINANCIAL CORP)
Participations and Assignments. (a) This Agreement shall be binding upon Subject to section 10(e) hereof, each Lender (without either Borrower's consent) may assign and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank grant participations in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a any portion of its rights and obligations under this Agreement (including, including without limitation, limitation all or a portion part of its Commitment, the Loans owing its Interim Loan Advances, its Basic Loan and its Note) to it and the Note an Affiliate or Notes held by it); provided, however, that to any other Person.
(ib) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in In the case of an assignment of all of by a Bank's rights and obligations Lender under this Agreementsection 10, (A) the amount assignee shall have, to the extent of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. Upon execution by the assignor and the assignee of an instrument pursuant to which the assignee assumes such rights and obligations, payment by such assignee to such assignor of an amount equal to the purchase price agreed between such assignor and such assignee and delivery to each of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute Administrative Agent and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate Representative of an executed copy of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon instrument, such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided therein), the same rights and obligations hereunder benefits as it would have been assigned to if it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank were an original Lender hereunder and (y) the Bank assignor thereunder shallshall be, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment (unless otherwise provided therein), relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment Agreement. Each Borrower hereby acknowledges and Acceptance covering all agrees that any assignment will give rise to a direct obligation of the remaining portion of an assigning Bank's rights Borrowers to the assignee and obligations under this Agreement, such Bank that the assignee shall cease be considered to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding Lender" for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all 143 purposes of this AgreementAgreement and the other Loan Documents. The Register shall be available for inspection by the Borrower or Upon any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the BorrowerBorrowers, at its own their sole expense, shall execute and deliver to the Agent assignee lender in exchange for the surrendered Note or Notes of the assignor lender a new Note payable to the order of such the assignee lender in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order original principal amount of the assigning Bank in an amount equal to the Commitment retained by it hereundersurrendered Note. Such new Note or Notes shall be dated the date of, and shall otherwise be in an the form of, the Note replaced thereby. To the extent that the assignment shall be of less than the entire amount of the interest of the assignor, the Borrowers, at the discretion of the assignor but at the sole expense of the Borrowers, shall execute and deliver to each of the assignor and the assignee new Notes, payable to the orders of the assignor and assignee, respectively, in respective principal amounts directed by the assignor but in aggregate principal amount equal to the aggregate principal amount of such the surrendered Note. The Note or Notes, surrendered to the assignee lender shall be dated returned by the effective date of assignee lender to the Borrower Representative marked "canceled". Each Borrower hereby waives and agrees not to assert against any such Assignment and Acceptance and shall otherwise be in substantially assignee any defense, set-off, recoupment or counterclaim which either Borrower has or may at any time have against the form of Exhibit C heretoassigning lender or any other Person for any reason whatsoever.
(fc) The Banks maySubject to section 10(e) hereof, each Borrower acknowledges that it has been advised that each Lender may be acting hereunder for itself and as agent for certain third parties (each being herein referred to as a "Participant" and, collectively, as the "Participants"); that the interest of any Lender in this Agreement, the other Loan Documents and any other related instruments and documents may in whole or in part be conveyed to, and may be used as security for financing obtained from, one or more third parties without the consent of either Borrower (the "Syndication"). Each Borrower agrees reasonably to cooperate with the Lenders in connection with the Syndication, including the execution and delivery of such other documents, instruments, notices, opinions, certificates and acknowledgments as reasonably may be required by any assignment Lender or participation or proposed assignment or participation pursuant any such Participant; provided, however, that in no event shall either Borrower be required to this Section 10.03consent to any change that would adversely affect any of the economic terms of any of the transactions contemplated hereby; and provided, disclose further, that all Participants shall satisfy the requirements set forth in section 10(e) for being an Eligible Assignee.
(d) Each such Participant shall be deemed to be a "Lender" and a "Lender Party" hereunder for purposes of sections 1.14, 1.15, 1.16 and 1.20 (and other provisions hereof according rights of indemnification to the Lenders or Lender Parties) and for the purposes of determining the "Requisite Lenders" hereunder at any time.
(e) Provided that at the time of such assignment there shall not have occurred and then be continuing any Event of Default hereunder, unless each of the Borrowers and the Administrative Agent shall otherwise consent in writing, no assignment by a Lender shall be made under this section 10 except to an assignee (1) which has not been denied an approval or participant a license, or proposed assignee been found unsuitable under the Nevada Gaming Laws applicable to lenders and (2) which is either (A) (i) a commercial bank organized under the laws of the United States or participant any public information relating to the Borrower and, provided that such proposed assignee state thereof; (ii) a savings and loan association or participant executes a confidentiality letter, any other information relating to the Borrower.savings 144
Appears in 1 contract
Sources: Term Loan and Security Agreement (Grand Canal Shops Mall Construction LLC)
Participations and Assignments. (a) This Agreement shall be binding upon Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and inure to the benefit has assets or capital of at least $100,000,000 (other than (i) a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto Loans and their respective successors and assignsalso such Lender’s Pro Rata Share of the Term Loan, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, -106- which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Million Dollars (b$5,000,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment and, a processing and recordation fee of $3,000, and within three (iv3) any Bank may without Business Days after notice thereof. Notwithstanding the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptanceforegoing, (x) no consent of Borrower or Administrative Agent shall be required for any assignment to a Lender or an Affiliate of a Lender (provided that no assignment shall be made to any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) and (y) the consent of each Issuing Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee thereunder to participate in exposure under one or more Letters of Credit (whether or not then outstanding).
(b) From and after the date on which the conditions described above have been met, (i) such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank Lender hereunder and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) a Revolving Credit Note in the principal amount of the Assignee’s Revolving Loan Commitment hereunder(and, as applicable, a new Revolving Credit Note to in the order principal amount of the assigning Bank in an amount equal to the Revolving Loan Commitment retained by it hereunderthe assigning Lender). Such new Each such Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment assignment. Upon receipt by the assigning Lender of such Revolving Credit Note, the assigning Lender shall return to Borrower any prior Revolving Credit Note held by it.
(c) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement and Acceptance applicable promissory note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such Loan(s) and promissory note(s) shall otherwise be in substantially the form fully transferable as provided therein, and this Section shall not apply to any such pledge or assignment of Exhibit C a security interest; provided that no such pledge -107- or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(fd) The Banks maySubject to the last sentence in Section 13.9, any Lender may at any time (without any required consent) sell to one or more Persons (other than (i) a natural person or (ii) a Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) participating interests in its respective Loan or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations under this Agreement shall remain unchanged for all purposes, (b) Administrative Agent and Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (c) all amounts payable by Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. No Participant shall have any assignment direct or indirect voting rights under this Agreement except with respect to any event described in Section 12.1 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or proposed assignment 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 to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 2.13(d). Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 or 3.3 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to this Section 10.03, disclose Sections 3.1 or 3.3 than would have been paid to the assignee participating Lender on such date if no participation had been sold and that each Participant complies with Section 3.3 as if it were an Assignee).
(e) Administrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of Lenders, the Pro Rata Share of each Lender and the Loans of each Lender from time to time and whether such Lender is the original Lender or participant or proposed assignee or participant the Assignee. No assignment shall be effective unless and until the Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in such Loan. Administrative Agent shall not incur any public information relating liability of any kind with respect to any Lender with respect to the maintenance of the Register. Upon the reasonable written request of Borrower, Administrative Agent will furnish a copy of the Register to the Borrower andAgent or Borrower (at the cost, provided that such proposed assignee or participant executes a confidentiality letterif any, any other information relating to the Borrower).
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and has assets or capital of at least $100,000,000 (aother than (i) This Agreement shall be binding upon and inure to the benefit a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto Loan and their respective successors and assignsalso such Lender’s Pro Rata Share of the Affiliate Revolving Loans, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Million Dollars (b$5,000,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment andwithin three (3) Business Days after notice thereof. Notwithstanding the foregoing, a processing and recordation fee of $3,000, and (iv) any Bank may without the no consent of the Borrower or the Agent, assign Administrative Agent shall be required for any assignment to a Lender or an - 106 - DM3\7000734.9 Affiliate of a Lender (provided that no assignment shall be made to any Affiliate of such Bank that is a bank Defaulting Lender or financial institution all of its rights and obligations under this Agreementwholly-owned subsidiaries). Upon such execution, delivery, acceptance and recording, from 125. From and after the effective date specified in such Assignment and Acceptanceon which the conditions described above have been met, (xi) the assignee thereunder such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank Lender hereunder and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) a Commitment hereunder, a new Term Loan Note to in the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of the Assignee’s Term Loan (and, as applicable, a Term Loan Note in the principal amount of the Term Loan retained by the assigning Lender). Each such surrendered Term Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and assignment. Upon receipt by the assigning Lender of such Term Loan Note, the assigning Lender shall otherwise be in substantially the form of Exhibit C heretoreturn to Borrower any prior Term Loan Note held by it.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. (aA) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto Borrower, Banks, and Agent and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, ; provided, however, that (i) such Bank's Borrower may not assign, transfer or delegate any of its rights, duties or obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to or the other parties hereto for Loan Documents without the performance prior written consent of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks. Banks shall continue to deal solely may assign, sell and directly with such Bank in connection with such Bank's rights and obligations under this Agreementtransfer their interests, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents only in accordance with this Paragraph 10.8.
(includingB) With the prior written consent of the Agent and the Borrower, without limitationnot to be unreasonably withheld, all any Bank may assign to one or more Eligible Assignees all, or a portion proportionate part of all, of its Commitmentinterests, the Loans owing to it rights and obligations under this Agreement and the Note or Notes held by it)other Loan Documents; provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a assigning Bank's interests, rights and obligations under this Agreement, (Aii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event not be less than the lesser of (A) the entire amount of such Bank's Loans or (B) the principal amount of $5,000,000, and in 5,000,000 or an integral multiples multiple of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000excess thereof, (iii) no more than three (3) Banks may be parties hereto without first obtaining the prior written consent of the Agent and Borrower; and (iv) the parties to each such assignment shall execute and and/or deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or the Notes subject to such assignment andassignment, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the 3,500 payable to Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date "Effective Date" specified in such the Assignment and Acceptance, which "Effective Date," unless Agent otherwise agrees, shall be not earlier than five Business Days after the date of acceptance and recording by Agent (xprovided, however, that, as between the assigning Bank and the assignee thereunder only, the effective date shall be the effective date of execution and delivery as between such Persons as specified in the Assignment and Acceptance), (A) the assignee thereunder shall be a party hereto Bank under this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the interests, rights and obligations of a Bank hereunder and (yB) the assigning Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptance, relinquish its rights and be released from its contractual obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an the assigning Bank's interests, rights and obligations under this Agreement, such assigning Bank shall cease to be a party heretoBank under this Agreement). Each Bank shall, in a reasonably prompt fashion after it has engaged in any material discussions with an Eligible Assignee that may lead to an assignment referred to in this Paragraph 10.8, notify Agent and Borrower of the identity of such Eligible Assignee so that they will have sufficient time to determine if they are willing to consent.
(dC) The Agent By executing and delivering an Assignment and Acceptance, the assigning Bank thereunder and the Eligible Assignee thereunder shall maintain at be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignee is an Eligible Assignee; (ii) other than as provided in the Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any representations, warranties or other statements made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any Collateral; (iii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any Subsidiary or the performance or observance by Borrower or any Subsidiary of any of its address designated on the signature pages hereof obligations under this Agreement or any other Loan Document; (iv) such assignee confirms that it has received a copy of each this Agreement, together with copies of the most recent Financial Statements and such other agreements, documents, instruments, certificates and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance delivered Acceptance; (v) such assignee will independently and without reliance upon Agent, such assigning Bank or any other Bank and based on such agreements, documents, instruments, certificates 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 and accepted the other Loan Documents; (vi) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Bank; and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries viii) such assignee makes loans in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes ordinary course of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeits business.
(eD) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeEligible Assignee and the required processing and recordation fee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completedis duly completed and is in the required form, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Banks and Borrower. Within ten five Business Days after its receipt of any such noticenotice from Agent, the Borrower, at its own expense, shall execute and deliver to the Agent Agent, in exchange for the surrendered Note or Notes Notes, a new Note or Notes payable to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to appropriate principal amount(s) evidencing such Assignment assignee's assigned Loans and Acceptance Commitments, and, if the assigning assignor Bank has retained a Commitment hereunderportion of its Loans and Commitments, a new Note or Notes payable to the order of such assignor in the assigning Bank in an amount equal to the Commitment appropriate principal amount(s) evidencing such assignor's Loans and Commitments retained by it hereunderit. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, Note(s) shall be dated the effective date of such Assignment and Acceptance the surrendered Note(s) which they replace and shall otherwise be in substantially the form of Exhibit C heretothe surrendered Notes, as appropriate.
(fE) The Each Bank may, without the consent of Borrower, any Subsidiary or Agent, sell participations to one or more banks in all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Loans or Commitments) held by it; provided, however, that (i) such Bank shall remain a Bank for all purposes of this Agreement and the transferee of such participation shall not constitute a Bank under this Agreement, (ii) such Bank's obligations under this Agreement shall remain unchanged, (iii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iv) the participating banks or other entities shall be entitled to the benefit of the provisions contained in Paragraphs 2.8 and 2.9 to the same extent as if they were Banks, except that no such participant shall be entitled to receive any greater benefit or amounts pursuant to Paragraph 2.8 than its assignor Bank would have been entitled to receive with respect to the rights participated, and (v) Borrower, Subsidiaries, Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's interests, rights and obligations under this Agreement, and such Bank shall retain the sole right to enforce the obligations of Borrower and its Subsidiaries relating to the Loans and to approve any amendment, modification or waiver of any provision of this Agreement, provided that such participation agreement may provide that such Bank will not agree to any amendment, modification or waiver of this Agreement or the other Loan Documents, without the consent of such participant, that would (A) reduce the principal or the rate of interest payable by Borrower on any Loan or reduce any fees payable by Borrower, (B) postpone any date fixed for the payment of principal of or interest on the Loans or any fees payable by Borrower, (C) increase any Commitment of any Bank or subject any Bank to any obligation to make Loans, or (D) amend Paragraph 10.3, 10.8(E) or any other provision of this Agreement requiring the consent or other action of all Banks.
(F) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03Paragraph 10.8, disclose to the assignee or participant or proposed assignee or participant any public information relating to Borrower or any Subsidiary, the Collateral or the Loan Documents furnished to such Bank by or on behalf of the Borrower andor any Subsidiary; provided, provided that however, that, prior to any such disclosure, each such assignee or participant or proposed assignee or participant executes shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of any non-public information received from such Bank.
(G) If (i) any Bank has demanded compensation under Paragraph 2.8 in an aggregate amount exceeding $5,000 during any calendar year, (ii) it becomes unlawful, impossible or impractical for any Bank to make or continue to maintain Eurodollar Loans pursuant to Paragraph 2.9 and such circumstance is not applicable to NationsBank, or (iii) any Bank is or becomes insolvent or a confidentiality letterreceiver, conservator or similar authority is appointed for any Bank, then Agent and/or Borrower shall have the right, but not the obligation, upon notice to such Bank and Borrower or Agent, as applicable, to designate, with the consent of such assignee, an assignee for any such Bank, which assignee shall be an Eligible Assignee mutually satisfactory to Agent and Borrower, to purchase such Bank's Loans and Commitments and assume such Bank's obligations; provided, however, that Borrower shall not have the right to designate any assignee for NationsBank. Within ten Business Days after any such notice to such Bank and Borrower or Agent, as applicable, such Bank shall be obligated to sell its Loans and Commitments, and such assignee shall be obligated to purchase such Loans and assume such Bank's obligations, pursuant to an Assignment and Acceptance. The purchase price therefor shall be an amount equal to the sum of (A) the outstanding principal amount of the Loans payable to such Bank, plus (B) all accrued and unpaid interest on such Loans, (C) Letter of Credit Interest, plus (D) all accrued and unpaid fees and other amounts due to such Bank pursuant to this Agreement.
(H) Notwithstanding anything to the contrary contained in this Paragraph 10.8, any other information relating Bank may at any time or from time to time assign as collateral all or any portion of its rights under this Agreement with respect to its Loans, Commitments and Notes to a Federal Reserve Bank. No such assignment shall release the Borrowerassigning Bank from its obligations under this Agreement.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Specialty Care Network Inc)
Participations and Assignments. (a) This The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, provided except that neither the Borrower nor any other Credit Party may not, without the prior consent assign or otherwise transfer any of the Banks, assign its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or under otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 12.1(b), (ii) by way of participation in accordance with the provisions of Section 12.1(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 12.1(e) (and any other Loan Document attempted assignment or transfer by any party hereto shall be null and the Banks void). Nothing in this Agreement, expressed or implied, shall not be obligated construed to make confer upon any Loan hereunder to any entity Person (other than the Borrowerparties hereto, their respective successors and assigns permitted hereby and Participants to the extent provided in Section 12.1(d)) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank Lender may sell at any time assign to one or more assignees (any banksuch assignee, financial institution an “Assignee”) all or institutions any portion of such Lender’s Pro Rata Share of the Term Loans and its other rights and obligations hereunder, with the prior written consent of Administrative Agent and, so long as no Default or other entityEvent of Default has occurred and is continuing, with the prior written consent of Borrowers (all of which consents shall not be unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree, any such bankassignment shall be in a minimum aggregate amount equal to Five Million Dollars ($5,000,000) or, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining portion of the Term Loan Commitment held by the assigning Lender. Borrowers and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank assigning Lender in connection with the interests so assigned to an Assignee until Administrative Agent shall have received an Assignment Agreement executed, delivered and fully completed by the applicable parties thereto and a processing fee paid by such Bank's rights applicable parties of Three Thousand Five Hundred and obligations under this Agreement, and No/100ths Dollars (v) such Bank shall not grant to its participant any rights to consent or withhold consent $3,500.00). No assignment to any action taken by such Bank or Ineligible Assignee shall be permitted hereunder. Any attempted assignment not made in accordance with this Section 12.1(b) shall be treated as the Agent sale of a participation under this Agreement other than action requiring the consent of all of the Banks hereunderSection 12.1(d).
(c) Each Bank mayFrom and after the date on which the conditions described in Section 12.1(b) above have been met, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment Assignee shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant deemed automatically to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank hereunder Lender hereunder, and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) a Commitment hereunderPromissory Note in the principal amount of the Assignee’s Pro Rata Share of the Term Loans (and, as applicable, a new Promissory Note to in the order principal amount of the assigning Bank in an amount equal to the Term Loan Commitment retained by it hereunderthe assigning Lender). Such new Each such Promissory Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment assignment. Upon receipt by the assigning Lender of such Promissory Note, the assigning Lender shall return to Borrowers any prior Promissory Note held by it.
(d) Any Lender may at any time sell (without any required consent) to one or more Persons (other than a Person that is an Ineligible Assignee) participating interests in its respective Pro Rata Share of the Term Loans or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (i) such ▇▇▇▇▇▇’s obligations hereunder shall remain unchanged for all purposes, (ii) Administrative Agent and Acceptance Borrowers shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations hereunder and (iii) all amounts payable by Borrowers shall be determined as if such Lender had not sold such participation and shall otherwise be paid directly to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in substantially the Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of Exhibit C the United States Treasury Regulations. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 13.4(b) expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such ▇▇▇▇▇▇ enters into with any Participant. Each Borrower agrees that if amounts outstanding hereunder 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 hereunder to the same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 14.13. Each Borrower agrees that each Participant shall be entitled to the benefits of Section 2.13 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to Section 2.13 than would have been paid to the participating Lender on such date if no participation had been sold and that each Participant complies with Section 2.13 as if it were an Assignee).
(e) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights hereunder and applicable Promissory Note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such portion of the Term Loans and Promissory Note(s) shall be fully transferable as provided therein, and this Section 12.1 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) The Banks mayAdministrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of Lenders, the Pro Rata Share of each Lender and the portion of the Term Loans owing to each Lender and whether such Lender is the original Lender or the Assignee. All records of transfer of a ▇▇▇▇▇▇’s interest in connection the Register shall be conclusive, absent manifest error, as to the ownership of the interests in the Term Loans. Administrative Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register or for any failure to ensure that any assignment is made in accordance with the terms hereof. Upon the reasonable written request of Borrower Representative, Administrative Agent will furnish a copy of the Register to Borrower Representative or participation or proposed assignment or participation pursuant another Borrower (at the cost, if any, to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the BorrowerBorrowers).
Appears in 1 contract
Participations and Assignments. Borrower hereby acknowledges and agrees that a Lender may at any time: (a) This Agreement shall be binding upon and inure to the benefit grant participations in its share of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights Loan or obligations hereunder any Note or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreementright, (iv) the Borrower, the Agent title and the other Banks shall continue interest therein or in or to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (includingcollectively, without limitation"Participations") to any other lending office or to any other bank, all lending institution or a portion other Person which has the requisite sophistication to evaluate the merits and risks of its Commitment, the Loans owing to it and the Note or Notes held by itinvestments in Participations ("Participants"); provided, however, that that: (i) each such assignment all amounts payable by Borrower hereunder shall be of a uniform, determined as if such Lender had not granted such Participation; and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of any agreement pursuant to which any Lender may grant a Bank's rights and obligations under this Agreement, Participation: (A) shall provide that such Lender shall retain the amount sole right and responsibility to enforce the obligations of Borrower hereunder including, without limitation, the Commitment right to approve any amendment, modification or waiver of the assigning Bank being assigned pursuant to each such assignment (determined as any provisions of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and this Agreement; (B) after giving effect may provide that such Lender will not agree to each such assignmentany modification, the amount amendment or waiver of the Commitment this Agreement requiring approval of the assigning Bank shall in no event be less than $5,000,000, (iii) the parties all Lenders pursuant to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may Paragraph 8.3 hereof without the consent of the Borrower Participant and (C) shall not relieve such Lender from its obligations, which shall remain absolute, to make Advances as provided hereunder; and (b) assign (i) all or any percent of its share of the AgentLoan or any Note or right, assign title and interest therein or in and to this Agreement, to (x) a Lender; (y) any Affiliate of such Bank that is a bank Lender; or financial institution (z) any Federal Reserve Bank; or (ii) all or any part of its rights share of the Loan or any Note or right, title and obligations under interest therein or in and to this Agreement. Upon such executionAgreement to a third party; provided, deliveryhowever, acceptance and recording, from and after that in the effective date specified in such Assignment and Acceptance, absence of an Event of Default or Default hereunder no assignment pursuant to (xb)(ii) the assignee thereunder above shall be a party hereto and, to made without the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations prior written consent of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, which consent shall execute not be unreasonably withheld. Any participations and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it any assignments pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes subparagraph (b) shall be in an aggregate principal amount equal to not less than Five Million Dollars ($5,000,000) and, shall not result in the aggregate principal amount Maximum Principal Amount of such surrendered Note or Notes, the assigning Lender being less than Five Million Dollars ($5,000,000) unless it is reduced to zero (0). Any assignment pursuant to subparagraph (b) shall require payment by the applicable Lender to Agent of a $3,500 service fee. Any assignment pursuant to subparagraph (b) shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of attached hereto as Exhibit C F attached hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. The Borrower shall not assign or otherwise transfer any of the rights of the Borrower pursuant to this Agreement without the prior written consent of all the Banks, and any such assignment or other transfer without such prior written consent shall be void. No consent by any Bank to any such assignment or other transfer shall release the Borrower from any indebtedness, liability or obligation of the Borrower pursuant to this Agreement. No Bank shall assign or otherwise transfer, or grant any participation in, any indebtedness, liability or obligation of the Borrower to such Bank pursuant to this Agreement or any of the rights and remedies of such Bank pursuant to this Agreement without the prior written consent of the Borrower and the Administrative Agent which consent shall not be unreasonably withheld, except (i) any Bank may assign or otherwise transfer, or grant participations in, any indebtedness, liability or obligation of the Borrower to any other Bank or to any Affiliate of such Bank, and (ii) any Bank may execute an assignment in favor of a Replacement Bank as contemplated by Section 2.15 hereof. Notwithstanding any of the foregoing, any Bank without the consent of the Borrower or Administrative Agent, (i) may grant a participation in any indebtedness, liability or obligation of the Borrower to such Bank, including without limitation, any Advances, Letters of Credit and Swingloans provided (a) This Agreement shall be binding upon such participation is in a minimum amount of $5,000,000 and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the its performance of such obligationsunder this Agreement, (iii) such Bank shall remain the holder of its Notes the Note made payable to it for all purposes of under this Agreement, (iv) the Borrower, the Agent Agreement and the other Banks Borrower and Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank's =s rights and obligations under this Agreement, Agreement and the Collateral Documents; and (vii) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (includingAgreement, including without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to any Advances, Letters of Credit and Swingloans provided (a) an Event of Default has occurred and is continuing, (b) such assignment) shall assignment is in no event be less than a minimum amount of $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (Bc) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of if such Bank that is a bank or financial institution does not fully assign all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreementobligations, such Bank shall cease to be a party hereto)retain at least $10,000,000 of obligations under the Agreement.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Debtors shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document Agent and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerLenders.
(b) Any Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank may sell in support of borrowings made by such Lender from such Federal Reserve Bank provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto or (ii) granting participations in such ▇▇▇▇▇▇’s Loans hereunder to its parent and/or to any bankaffiliate of such Lender or to any existing Lender or affiliate thereof. Any Lender may make, financial institution carry or institutions transfer Loans at, to or other entityfor the account of, and any of its branch offices or the office of an affiliate of such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Lender except to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they transfer would have had if such participant or participants were the Bank making the Loans result in increased costs to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunderDebtor.
(c) Each Bank Lender may, with the prior written consent of Agent and (if no Default or Event of Default has occurred and is continuing) with the Agentconsent of Debtors (with each of such consents not to be unreasonably withheld, conditioned, or delayed), assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Notes. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of $3,500 to be paid by it); providedthe assignee, however(ii) no such assignment shall be for less than $10,000,000 or, that (i) if less, the entire remaining Commitment of such Lender, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount and in respect of both the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as Lender and all Loans of the date such Lender. Upon such execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's ▇▇▇▇▇▇’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) . The Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Debtors, shall maintain at one of its address designated on the signature pages hereof offices in Chicago, Illinois, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks Lenders, and the Commitment Commitments of, and principal amount amounts (and stated interest) of the Loans owing to, each Bank Lender pursuant to the terms hereof from time to time (the "“Register"”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the BorrowerDebtors, the Agent Agent, and the Banks may Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or Debtors and any Bank Lender, at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be made to: a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person); a Debtor; or any of a Debtor’s Affiliates or Subsidiaries.
(ed) Upon its receipt of an Assignment and Acceptance executed Within 10 days after demand by an assigning Bank and an assigneeAgent, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning ▇▇▇▇▇▇ agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such the assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank ▇▇▇▇▇▇ has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(e) Each Lender may, without the prior written consent of Agent or any other Lender or Borrowers, sell participations to one or more parties (a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) Borrowers, Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or sell any participation under which the Participant shall have rights to approve any amendment or waiver of this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 10.2 that expressly relate to amendments requiring the unanimous consent of the Lenders. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10 and 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.14 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.10 with respect to any Participant. Each Participant agrees to be subject to Section 2.11 (Sharing of Payments) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) The Banks mayEach ▇▇▇▇▇▇ agrees that, without the prior written consent of ▇▇▇▇▇▇▇▇▇ and Agent it will not make any assignment or sell a participation hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Advance, Note or other Obligation under the securities laws of the United States of America or of any jurisdiction.
(g) In connection with the efforts of any Lender to assign its rights or obligations or to participate interests, Agent or such Lender may disclose any information in its possession regarding Debtors, their finances and/or Property. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any assignment other Credit Document furnished pursuant hereto; (ii) such assigning Lender makes no representation or participation or proposed assignment or participation pursuant to this Section 10.03, disclose warranty and assumes no responsibility with respect to the financial condition of the Debtors or the performance or observance by the Debtors of any of their obligations under this Agreement or any other Credit Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon Agent, such assigning Lender or participant 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 proposed not taking action under this Agreement; (v) such assignee or participant any public information relating appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) 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.
(h) Notwithstanding anything in this Agreement to the Borrower andcontrary, provided under no circumstances shall Agent or any Lender provide any information regarding this Agreement (including related documents), the Receivables, the financial statements, affairs, policies, or business operations of Debtor to any Affiliate or otherwise related company that competes with Debtor or is engaged in the business of consumer finance lending outside the ordinary course of Agent’s or such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower▇▇▇▇▇▇’s business in administering loans in such Person’s portfolio.
Appears in 1 contract
Sources: Loan and Security Agreement (1st FRANKLIN FINANCIAL CORP)
Participations and Assignments. The H▇▇▇ Companies hereby acknowledge and agree that any Bank may at any time with the consent of the H▇▇▇ Group, Inc. (which consent shall not be unreasonably withheld): (a) This grant -41- Credit Agreement shall be binding upon February 25, 1999 participations in all or any portion of its Revolving Note or Term Note or of its right, title and inure interest therein or in or to the benefit of the parties hereto and their respective successors and assignsthis Agreement (collectively, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under "Participations") to any other Loan Document and the Banks shall not be obligated to make any Loan hereunder lending office of such Bank or to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it"Participants"); provided, however, that that: (i) each such assignment all amounts payable by the H▇▇▇ Companies hereunder shall be of a uniform, determined as if such Bank had not granted such Participation; and not a varying, percentage of all rights and obligations, (ii) except in any agreement pursuant to which such Bank may grant a Participation: (x) shall provide that such Bank shall retain the case sole right and responsibility to enforce the obligations of an assignment the H▇▇▇ Companies hereunder including, without limitation, the right to approve any amendment, modification or waiver of all any provisions of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to ; and (By) after giving effect such participation agreement may provide that such Bank will not agree to each such assignmentany modification, the amount amendment or waiver of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may this Agreement without the consent of the Borrower Participant if such modification, amendment or waiver would reduce the Agent, assign to principal of or rate of interest on any Affiliate Revolving Loan or Term Loan or postpone the date fixed for any payment of such Bank that is a bank principal of or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after interest on any Revolving Loan or Term Loan or increase the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder Aggregate Revolving Loan Commitment or Aggregate Term Loan Commitment; and (yb) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from assign any of its obligations under this Agreement (andand the Loan Documents, in the case of an Assignment and Acceptance covering all provided it shall retain at least $5,000,000 of the remaining portion of an assigning Bank's rights and obligations under this AgreementAggregate Revolving Loan Commitment, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation $2,500,000 of the names Aggregate Term Loan Commitment and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register")shall serve as agent for all its assignees. The entries in the Register For so long as First Union shall be conclusive and binding for all purposesthe Agent, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register its Revolving Loan Commitment shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeleast $15,000,000.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Sjit Inc)
Participations and Assignments. Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and has assets or capital of at least $100,000,000 (aother than (i) This Agreement shall be binding upon and inure to the benefit a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto and their respective successors and assignsLoans, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Hundred Thousand Dollars (b$500,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be -105- entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment and, a processing and recordation fee of $3,000, and within three (iv3) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt notice thereof. Notwithstanding the foregoing, no consent of such notice, the Borrower, at its own expense, shall execute and deliver to the Borrower or Administrative Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in required for any assignment to a Lender or an aggregate principal amount equal to the aggregate principal amount Affiliate of such surrendered Note or Notes, a Lender (provided that no assignment shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C heretomade to any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates).
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. (a) This Agreement shall be binding upon Lenders may, from time to time, in their sole discretion, and inure with concurrent notice to the benefit Borrowers, sell participations in any credit subject hereto to such other investors or financial institutions as it may elect. Lenders and Agent may from time to time disclose to any participant or prospective participant such information as they may have regarding the financial condition. operations, and prospects of the parties hereto and their respective successors and assignsBorrowers, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated which participant agrees to make any Loan hereunder to any entity other than the Borrowerkeep such information confidential.
(b) Any Bank may sell to At any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, time after the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank Closing Date each Lender may, with the prior consent of the AgentAgent and the Borrowers (so long as no Default or Unmatured Default exists), which consent shall not be unreasonably withheld, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, including all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by itpayable to its order); provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a Bank's assigning Lender’s rights and obligations under this Agreement, (Aii) for each assignment involving the amount issuance and transfer of the Commitment of Notes, the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Lender shall execute an Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may Borrowers hereby consent to and (B) after giving execute a replacement Note or Notes to give effect to each such the assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) the parties to each such assignment minimum commitment which shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of be assigned is $3,000, 5,000,000 and (iv) any Bank may without such assignee has an office located in the consent United States of the Borrower or the Agent, assign America and is acting through such office with respect to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance approval and recordingacceptance, from and after the effective date specified in such each Assignment and Acceptance, Acceptance (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under such Note or Notes have been assigned or negotiated to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder Lender hereunder, as fully as if such assignee had been named as a Lender in this Agreement, and of a holder of such Note or Notes, and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder or under such Note or Notes have been assigned or negotiated by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and future obligations under this Agreement. No assignee shall have the right to make any further assignment of its rights and obligations pursuant to this Agreement. Any Lender that makes an assignment (other than an assignment to an existing Lender or an Affiliate of a Lender) shall pay to the Agent a one-time administrative fee of $3,500, which fee shall not be reimbursed by the Borrowers.
(c) By executing and delivering an Assignment and Acceptance, the Lender-assignor and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) the assignment made under such Bank Assignment and Acceptance is made under such Assignment and Acceptance without recourse; (ii) such assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrowers or any other person or the performance or observance by the Borrowers or any other person of any of its obligations under any Credit Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of all financial statements delivered pursuant to this Agreement, and such other Credit Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, the assignor or any other Lender and based on such documents and information as it shall cease deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Note and the other Credit Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform 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 party hereto)Lender and a holder of such Note.
(d) The Agent shall maintain at its address designated on the signature pages hereof referred to herein a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeit.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignmentLender, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) shall give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C heretoBorrowers.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and has assets or capital of at least $100,000,000 (aother than (i) This Agreement shall be binding upon and inure to the benefit a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto Loans and their respective successors and assignsalso such Lender’s Pro Rata Share of the Affiliate Term Loan, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Million Dollars (b$5,000,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in -116- connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment and, a processing and recordation fee of $3,000, and within three (iv3) any Bank may without Business Days after notice thereof. Notwithstanding the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptanceforegoing, (x) the assignee thereunder no consent of Borrower or Administrative Agent shall be required for any assignment to 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 Lender or an Affiliate of a Bank hereunder Lender (provided that no assignment shall be made to any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) and (y) the Bank assignor thereunder shall, consent of each Issuing Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all obligation of the remaining portion assignee to participate in exposure under one or more Letters of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party heretoCredit (whether or not then outstanding).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. Each Borrower hereby acknowledges and agrees that any Bank may at any time, with the consent of the Company and First Union, as Agent (which consents shall not be unreasonably withheld): (a) This grant participations in all or any portion of its Loan Commitment or any portion of its Note or of its right, title and interest therein or in or to this Agreement shall be binding upon and inure (collectively, "Participations") to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder lending office of such Bank or to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, "Participants"); provided, however, that that: (i) all amounts payable by Borrowers hereunder shall be determined as if such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against Bank had not granted such Bank, Participation; (ii) such Bank shall remain solely responsible to the other parties hereto act as agent for the performance of such obligations, all Participants; and (iii) any agreement pursuant to which such Bank may grant a Participation: (x) shall provide that such Bank shall remain retain the holder sole right and responsibility to enforce the obligations of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (Borrowers hereunder including, without limitation, all the right to approve any amendment, modification or a portion waiver of any provisions of this Agreement; (y) such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement without the consent of the Participant if such modification, amendment or waiver would reduce the principal of or rate of interest on any Loan or postpone the date fixed for any payment of principal of or interest on any Loan; and (z) shall not relieve such Bank from its obligations, which shall remain absolute, to make Loans hereunder; and (b) assign any of its Loans and its Loan Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, provided that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment at least $5,000,000 (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000unless, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to such assignment and all other such assignments by such assigning Bank occurring simultaneously or substantially simultaneously therewith, such assigning Bank shall hold no Revolving Credit Commitment or any portion of its Note hereunder). Upon execution and delivery by the assignee to Borrowers of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder having the Loan Commitment and Loans specified in such instrument, and upon consent thereto by Borrower, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower), the obligations, rights and benefits of a Bank hereunder holding the Loan Commitment and Loans (or portions thereof) assigned to it, and such Bank shall, to the extent of such assignment, be released from the Commitment (or portion(s) thereof) so assigned. In each such instance, the assignee Bank shall be entitled to receive substituted Notes in its name. Upon receipt of the substituted Notes, the assignee Bank shall ▇▇▇▇ the assigned Notes "canceled" and return them to the Company. Upon each such assignment, the amount of the Commitment of the assigning Bank assignee shall in no event be less than $5,000,000pay to First Union, (iii) the parties to each such assignment shall execute and deliver to the as Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) 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 of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto)3,500.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon Any Lender may at any time assign to one or more Persons that extends secured commercial loans in its ordinary course of business and inure to the benefit has assets or capital of at least $100,000,000 (other than (i) a natural person or (ii) any Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) (any such Person, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the parties hereto Loan and their respective successors and assignsalso such Lender’s Pro Rata Share of the Revolving Loans, provided that the Borrower may not, without with the prior written consent of the BanksAdministrative Agent, assign its rights or obligations hereunder or under any other Loan Document and, so long as no Event of Default has occurred and the Banks is continuing, Borrower (all of which consents shall not be obligated unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to make another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree (and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed), any Loan hereunder such assignment shall be in a minimum aggregate amount equal to any entity other than the Borrower.
Five Million Dollars (b$5,000,000) Any Bank may sell to any bankor, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) inif less, the Loans remaining Loan held by the assigning Lender. Borrower and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and Administrative Agent shall be entitled to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank Lender in connection with such Bank's rights the interests so assigned to an Assignee until Administrative Agent shall have received and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such accepted an effective assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except agreement in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in substantially the form of Exhibit C hereto (an "“Assignment Agreement”) executed, delivered and Acceptance"fully completed by the applicable parties thereto and a processing fee of Five Thousand Dollars ($5,000). No assignment may be made to any Person if at the time of such assignment Borrower would be obligated to pay any greater amount under Sections 3.1 or 3.3 to the Assignee than Borrower is then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, together Borrower will not be required to pay such greater amounts). Any attempted assignment not made in accordance with this Section 12.15 shall be treated as the sale of a participation hereunder. Borrower shall be deemed to have granted its consent to any Note or Notes subject assignment requiring its consent hereunder unless Borrower has expressly objected to such assignment andwithin three (3) Business Days after notice thereof. Notwithstanding the foregoing, a processing and recordation fee of $3,000, and (iv) any Bank may without the no consent of the Borrower or the Agent, assign Administrative Agent shall be required for any assignment to a Lender or an Affiliate of a Lender (provided that no assignment shall be made to any Affiliate of such Bank that is a bank Defaulting Lender or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from wholly-owned subsidiaries).
(b) From and after the effective date specified in such Assignment and Acceptanceon which the conditions described above have been met, (xi) the assignee thereunder such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it such Assignee pursuant to such Assignment and AcceptanceAgreement, shall have the rights and obligations of a Bank Lender hereunder and (yii) the Bank assignor thereunder shallassigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and AcceptanceAgreement, relinquish its rights and shall be released from its rights (other than its indemnification rights) and obligations under this Agreement hereunder. Upon the request of the Assignee (and, in as applicable, the case of assigning Lender) pursuant to an effective Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note delivery to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance Assignee (and, if as applicable, the assigning Bank has retained Lender) (i) a Commitment hereunderTerm Loan Note in the principal amount of the Assignee’s Term Loan (and, - 92 - DM3\3743049.7 as applicable, a new Term Loan Note to in the order principal amount of the Term Loan retained by the assigning Bank Lender) and (ii) an Acquisition Loan Note in the principal amount of the Assignee’s Acquisition Loan Commitment (and, as applicable, an Acquisition Loan Note in the principal amount equal to of the Acquisition Loan Commitment retained by it hereunderthe assigning Lender). Such new Each such Term Loan Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Acquisition Loan Note or Notes, shall be dated the effective date of such Assignment assignment. Upon receipt by the assigning Lender of such Term Loan Note or Acquisition Loan Note, the assigning Lender shall return to Borrower any prior Term Loan Note or Acquisition Loan Note held by it.
(c) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement and Acceptance applicable promissory note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such Loan(s) and promissory note(s) shall otherwise be in substantially the form fully transferable as provided therein, and this Section shall not apply to any such pledge or assignment of Exhibit C a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(fd) The Banks maySubject to the last sentence in Section 13.9, any Lender may at any time (without any required consent) sell to one or more Persons (other than (i) a natural person or (ii) a Defaulting Lender or its wholly-owned subsidiaries or its other Affiliates) participating interests in its respective Loan or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations under this Agreement shall remain unchanged for all purposes, (b) Administrative Agent and Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (c) all amounts payable by Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. No Participant shall have any assignment direct or indirect voting rights under this Agreement except with respect to any event described in Section 12.1 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or proposed assignment 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 to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 2.13(d). Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 or 3.3 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to this Section 10.03, disclose Sections 3.1 or 3.3 than would have been paid to the assignee participating Lender on such date if no participation had been sold and that each Participant complies with Section 3.3 as if it were an Assignee).
(e) Administrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses DM3\3743049.7 of Lenders, the Pro Rata Share of each Lender and the portion of the Loan of each Lender and whether such Lender is the original Lender or participant or proposed assignee or participant the Assignee. No assignment shall be effective unless and until the Assignment Agreement is accepted and registered in the Register. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in such Loan. Administrative Agent shall not incur any public information relating liability of any kind with respect to any Lender with respect to the maintenance of the Register. Upon the reasonable written request of Borrower, Administrative Agent will furnish a copy of the Register to the Borrower andAgent or Borrower (at the cost, provided that such proposed assignee or participant executes a confidentiality letterif any, any other information relating to the Borrower).
Appears in 1 contract
Sources: Term Loan and Security Agreement (Diversicare Healthcare Services, Inc.)
Participations and Assignments. (a) This Agreement shall be binding upon bind and inure to the benefit of the parties hereto and their respective each signatory, its successors and assigns; provided, provided that however that, Borrowers and Guarantors shall not have the Borrower may not, without right to assign or delegate their obligations and duties under this Agreement or any other Credit Documents or any interest therein except with the prior written consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the BorrowerAgent.
(b) Any Bank may sell to Notwithstanding subsection (c) of this Section 10.8, nothing herein shall restrict, prevent or prohibit any bank, financial institution Lender or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that Holder from (i) pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against Lender or Holder from such Federal Reserve Bank, (ii) granting assignments in such Bank shall remain solely responsible Lender’s or Holder’s Loans hereunder to the other parties hereto for the performance its parent and/or to any affiliate of such obligations, Lender or Holder or to any existing Lender or Holder or affiliate thereof or (iii) granting participations in such Bank shall remain Lender’s or Holder’s Loans hereunder to any Person. Any Lender or any Holder may make, carry or transfer Loans at, to or for the holder account of, any of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank branch offices or the Agent under this Agreement other than action requiring office of an affiliate of such Lender or such Holder except to the consent of all of the Banks hereunderextent such transfer would result in increased costs to Borrower.
(c) Each Bank Lender or Holder may, with the prior written consent of Agent and, so long as no Event of Default has occurred and is continuing, the AgentBorrower, assign to one or more banks or other entities financial institutions all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Notes. In connection with each assignment: (i) the parties thereto shall execute and deliver to Agent, for its acceptance (if properly completed and executed in accordance with the terms hereof) and recording in its books and records, an Assignment and Acceptance, together with any Note or Notes held subject to such assignment and a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500) to be paid by itthe assignee, (ii) no such assignment shall be for less than Five Million Dollars ($5,000,000); , provided, howeverfurther, that the assignee (iand each subsequent assignee) thereof shall be permitted to assign the rights and obligations assigned to it to another Person) or, if less, the entire remaining Commitment of such Lender or Holder, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligationsobligations under and in respect of both the Commitment of such Lender or such Holder and all Loans of such Lender or such Holder; provided and notwithstanding the foregoing, the recordation fee in the foregoing clause (i) and the assignment restrictions in the foregoing clause (ii) except in the case of shall not be applicable with respect to any assignment to a Person who is an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount affiliate of the Commitment of the assigning Bank being assigned pursuant to each Agent or a Lender. Upon such assignment (determined as of the date execution and delivery of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the date specified as the effective date specified in such the Assignment and AcceptanceAcceptance (“Acceptance Date”), (x) the assignee thereunder shall be a party hereto hereto, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Bank Lender or a Holder hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any rights it may have pursuant to Section 10.1 which will survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Bank's Lender’s or Holder’s rights and obligations under this Agreement, such Bank Lender shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment Promptly (and Acceptance delivered to and accepted in any event, within three (3) Business Days) after demand by it and a register for the recordation of the names and addresses of the Banks and the Commitment ofAgent, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, Borrowers shall execute and deliver to the Agent in exchange for the any surrendered Note or Notes (which the assigning Lender or Holder agrees to promptly deliver to Borrowers) a new Note or Notes to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank Lender or Holder has retained a Commitment hereunder, a new Note or Notes to the order of the assigning Bank Lender or Holder in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance Notes and shall otherwise be in substantially the form of Exhibit C heretothe Note or Notes subject to such assignments.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. ▇▇▇▇▇▇ hereby acknowledges and agrees that any Bank may at any time, with the consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld): (a) This grant participations in all or any portion of its Revolving Loan Commitment or any portion of its Note or of its right, title and interest therein or in or to this Agreement shall be binding upon and inure (collectively, "Participations") to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder lending office of such Bank or to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, "Participants"); provided, however, that that: (i) all amounts payable by ▇▇▇▇▇▇ hereunder shall be determined as if such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against Bank had not granted such Bank, Participation; (ii) such Bank shall remain solely responsible to the other parties hereto act as agent for the performance of such obligations, all Participants; and (iii) any agreement pursuant to which such Bank may grant a Participation: (x) shall provide that such Bank shall remain retain the holder sole right and responsibility to enforce the obligations of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (▇▇▇▇▇▇ hereunder including, without limitation, all the right to approve any amendment, modification or a portion waiver of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be any provisions of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement; (y) such participation agreement may provide that such Bank will not agree to any modification, (A) the amount amendment or waiver of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may this Agreement without the consent of the Borrower Participant if such modification, amendment or waiver would reduce the Agent, assign to principal of or rate of interest on any Affiliate Loan or postpone the date fixed for any payment of principal of or interest on any Loan; and (z) shall not relieve such Bank that is a bank or financial institution all from its obligations, which shall remain absolute, to make Loans hereunder; and (b) assign any of its rights Loans and obligations under this Agreementits Revolving Loan Commitment. Upon execution and delivery by the assignee to ▇▇▇▇▇▇ of an instrument in writing pursuant to which such execution, delivery, acceptance assignee agrees to become a "Bank" hereunder having the Revolving Loan Commitment and recording, from and after the effective date Loans specified in such Assignment instrument, and Acceptance, (x) the assignee thereunder shall be a party hereto andupon consent thereto by ▇▇▇▇▇▇, to the extent that required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the ▇▇▇▇▇▇), the obligations, rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations benefits of a Bank hereunder holding the Revolving Loan Commitment and Loans (yor portions thereof) the assigned to it, and such Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeportion(s) thereof) so assigned.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. (a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto Borrower, Banks, and Agent and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, ; provided, however, that (i) such Bank's Borrower may not assign, transfer or delegate any of its rights, duties or obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to or the other parties hereto for Loan Documents without the performance prior written consent of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks. Banks shall continue to deal solely may assign, sell and directly with such Bank in connection with such Bank's rights and obligations under this Agreementtransfer their interests, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents only in accordance with this Paragraph 10.8.
(includingb) With the prior written consent of the Agent and the Borrower, without limitationany Bank may assign to one or more Eligible Assignees all, all or a portion proportionate part of all, of its Commitmentinterests, the Loans owing to it rights and obligations under this Agreement and the Note or Notes held by it)other Loan Documents; provided, however, that (i) each such assignment shall be of a uniformconstant, and not a varying, percentage of all rights and obligations, (ii) except in of the case of an assignment of all of a assigning Bank's interests, rights and obligations under this Agreement, (Aii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event not be less than the lesser of (A) the entire amount of such Bank's Loans or (B) the principal amount of $5,000,000, and in 3,000,000 or an integral multiples multiple of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000excess thereof, (iii) no more than three (3) Banks may be parties hereto without first obtaining the prior written consent of the Agent and Borrower; and (iv) the parties to each such assignment shall execute and and/or deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or the Notes subject to such assignment andassignment, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the 2,500 payable to Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date "Effective Date" specified in such the Assignment and Acceptance, which "Effective Date, " unless Agent otherwise agrees, shall be not earlier than five Business Days after the date of acceptance and recording by Agent (xprovided, however, that, as between the assigning Bank and the assignee thereunder only, the effective date shall be the effective date of execution and delivery as between such Persons as specified in the Assignment and Acceptance), (A) the assignee thereunder shall be a party hereto Bank under this Agreement and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, have the interests, rights and obligations of a Bank hereunder and (yB) the assigning Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to provided in such Assignment and Acceptance, relinquish its rights and be released from its contractual obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an the assigning Bank's interests, rights and obligations under this Agreement, such assigning Bank shall cease to be a party heretoBank under this Agreement). Each Bank shall, in a reasonably prompt fashion after it has engaged in any material discussions with an Eligible Assignee that may lead to an assignment referred to in this Paragraph 10.8, notify Agent and Borrower of the identity of such Eligible Assignee so that they will have sufficient time to determine if they are willing to consent.
(c) By executing and delivering an Assignment and Acceptance, the assigning Bank thereunder and the Eligible Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignee is an Eligible Assignee; (ii) other than as provided in the Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any representations, warranties or other statements made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document or any Collateral; (iii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial conditions of Borrower or any Subsidiary or the performance or observance by Borrower or any Subsidiary of any of its obligations under this Agreement or any other Loan Document; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent Financial Statements and such other agreements, documents, instruments, certificates and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon Agent, such assigning Bank or any other Bank and based on such agreements, documents, instruments, certificates 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 and the other Loan Documents; (vi) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Bank; and (viii) such assignee makes loans in the ordinary course of its business.
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneeEligible Assignee and the required processing and recordation fee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completedis duly completed and is in the required form, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.to
Appears in 1 contract
Sources: Loan and Security Agreement (Clintrials Research Inc)
Participations and Assignments. ▇▇▇▇▇▇ hereby acknowledges and agrees that any Bank may at any time, with the consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld): (a) This grant participations in all or any portion of its Revolving Loan Commitment or any portion of its Note or of its right, title and interest therein or in or to this Agreement shall be binding upon and inure (collectively, "PARTICIPATIONS") to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder lending office of such Bank or to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial lending institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest which has the requisite sophistication to evaluate the merits and risks of investments in Participations (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, "PARTICIPANTS"); provided, however, that that: (i) all amounts payable by ▇▇▇▇▇▇ hereunder shall be determined as if such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against Bank had not granted such Bank, Participation; (ii) such Bank shall remain solely responsible to the other parties hereto act as agent for the performance of such obligations, all Participants; and (iii) any agreement pursuant to which such Bank may grant a Participation: (x) shall provide that such Bank shall remain retain the holder sole right and responsibility to enforce the obligations of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (▇▇▇▇▇▇ hereunder including, without limitation, all the right to approve any amendment, modification or a portion waiver of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be any provisions of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement; (y) such participation agreement may provide that such Bank will not agree to any modification, (A) the amount amendment or waiver of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may this Agreement without the consent of the Borrower Participant if such modification, amendment or waiver would reduce the Agent, assign to principal of or rate of interest on any Affiliate Loan or postpone the date fixed for any payment of principal of or interest on any Loan; and (z) shall not relieve such Bank that is a bank or financial institution all from its obligations, which shall remain absolute, to make Loans hereunder; and (b) assign any of its rights Loans and obligations under this Agreementits Revolving Loan Commitment. Upon execution and delivery by the assignee to ▇▇▇▇▇▇ of an instrument in writing pursuant to which such execution, delivery, acceptance assignee agrees to become a "Bank" hereunder having the Revolving Loan Commitment and recording, from and after the effective date Loans specified in such Assignment instrument, and Acceptance, (x) the assignee thereunder shall be a party hereto andupon consent thereto by ▇▇▇▇▇▇, to the extent that required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the ▇▇▇▇▇▇), the obligations, rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations benefits of a Bank hereunder holding the Revolving Loan Commitment and Loans (yor portions thereof) the assigned to it, and such Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior noticeportion(s) thereof) so assigned.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03, disclose to the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the Borrower.
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any No Bank may sell to any bankparticipate, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided transfer or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities all or a any portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the case of an assignment of all of a Bank's rights and obligations under this Agreement, (A) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Commitment of the assigning Bank shall in no event be less than $5,000,000, (iii) 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 in the form of Exhibit C hereto (an "Assignment and Acceptance"), together with any Note or Notes subject to such assignment and, a processing and recordation fee of $3,000, and (iv) any Bank may without the prior written consent of the Borrower or and the Agent, assign which consent shall not be unreasonably withheld, provided that the Borrower's prior written consent shall not be required (a) for participations, sales, transfers or assignments by any Bank to any an Affiliate of such Bank or (b) following the occurrence and during the continuation of any Default and provided further that is any such participation, sale, transfer or assignment shall be in an amount not less than $5,000,000.00, except that any Bank may sell a bank or participation interest in its Advances to any Person so long as the Bank continues to be the sole financial institution all of its rights and obligations under this Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, sending billing or other notices to the extent that rights Borrower and obligations entitled to receipt of notices hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto).
(d) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans owing to, each Bank from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and or any of the Banks, or calling upon the Borrower, the Agent or any of the Banks may treat each to discuss this Agreement, the Commitments or any Advance. A Person whose name is recorded purchasing such a participation shall have all rights of a Bank pursuant to this Agreement (except as set forth in the Register as immediately preceding sentence and except with respect to Section 9.04) and a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection may provide such participant with credit information received by such Bank from the Borrower or from Agent or which is otherwise publicly available. The Borrower agrees that any Bank participant permitted or consented to under this Section 10.04 shall at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt during the pendency of an Assignment Event of Default have the right to set off obligations owed to such participant and Acceptance executed by an assigning Bank and an assigneenot paid when due against any accounts or other assets of the Borrower held by, together on deposit with or in the possession of such participant. In connection with any Note assignment of a Bank's interest under this Agreement which is not a participation interest, or Notes subject which would require any modification to such assignmentthe Loan Documents, the Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof will be entitled to the Borrower. Within ten Business Days after its receipt receive an administrative fee of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Bank has retained a Commitment hereunder, a new Note to the order of $3,500.00 from the assigning Bank in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C hereto.
(f) The Banks may, in connection with such assignment, and the assigning Bank or its assignee will be responsible for any assignment or participation or proposed assignment or participation pursuant to this Section 10.03additional costs, disclose to including reasonable attorneys fees associated with any modification of the assignee or participant or proposed assignee or participant any public information relating to the Borrower and, provided that such proposed assignee or participant executes a confidentiality letter, any other information relating to the BorrowerLoan Documents.
Appears in 1 contract
Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Borrower Each Lender may not, without the prior consent of the Banks, assign its rights or obligations hereunder or under any other Loan Document and the Banks shall not be obligated to make any Loan hereunder to any entity other than the Borrower.
(b) Any Bank may sell to any bank, financial institution or institutions or other entity, and such bank, financial institution or institutions or other entity may further sell, a participation interest (undivided or divided) in, the Loans and such Bank's rights and benefits under this Agreement, the Notes and the Guaranties, and to the extent of that participation interest such participant or participants shall have the same rights and benefits against the Borrower under Section 2.15 and 2.17 as it or they would have had if such participant or participants were the Bank making the Loans to the Borrower hereunder, provided, however, that (i) such Bank's obligations under this Agreement shall remain unmodified and fully effective and enforceable against such Bank, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of its Notes for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) such Bank shall not grant to its participant any rights to consent or withhold consent to any action taken by such Bank or the Agent under this Agreement other than action requiring the consent of all of the Banks hereunder.
(c) Each Bank may, with the prior consent of the Agent, assign to one or more banks or other entities Eligible Assignees all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that that
(i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of an existing Lender or any fund that invests in bank loans and is advised or managed by an investment advisor to an existing Lender or an assignment of all of a BankLender's rights and obligations under this Credit Agreement, any such partial assignment shall be in an amount at least equal to $5,000,000 (A) or, if less, the remaining amount of the Commitment of the assigning Bank being assigned pursuant to each by such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignmentLender) shall in no event be less than $5,000,000, and in or an integral multiples multiple of $1,000,000 thereafterin excess thereof;
(iii) any such assignment shall be of a constant, or such lesser amount as not varying, percentage of (A) all of the Agent may consent to Obligations and Commitments hereunder and (B) after giving effect to each such assignment, the amount all of the Commitment of the assigning Bank shall in no event be less than $5,000,000, Tranche B Loans and Tranche B Commitments hereunder; and
(iiiiv) the parties to each such assignment shall execute and deliver to the Agent, Agent for its acceptance and recording in the Register, an Assignment and Acceptance in the form of Exhibit C hereto (an "Assignment and Acceptance")K hereto, together with any Note or Notes subject to such assignment and, and a processing and recordation fee of $3,000, and (iv) any Bank may without the consent of the Borrower or the Agent, assign to any Affiliate of such Bank that is a bank or financial institution all of its rights and obligations under this Agreement3,500. Upon such execution, delivery, and acceptance and recording, from and after the effective date specified in of such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to of such Assignment and Acceptanceassignment, have the rights obligations, rights, and obligations benefits of a Bank Lender hereunder and (y) the Bank assignor thereunder assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under this Agreement (andCredit Agreement. Upon the consummation of any assignment pursuant to this Section 10.2(a), in the case of an Assignment assignor, the Agent and Acceptance covering all the Borrowers shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is not a United States person under Section 7701(a)(30) of the remaining portion Code, it shall deliver to the Borrower, the Guarantors and the Agent certification as to exemption from deduction or withholding of an assigning Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto)Taxes.
(db) The Agent shall maintain at its address designated on the signature pages hereof a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks Lenders and the Commitment of, and principal amount of the Loans owing to, each Bank Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks Lenders may treat each Person whose name is recorded in the Register as a Bank Lender hereunder for all purposes of this Credit Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Bank Lender at any reasonable time and from time to time upon reasonable prior notice. Any assignment of any Loan or other obligations shall be effective only upon an entry with respect thereto being made in the Register.
(ec) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assigneethe parties thereto, together with any Note or Notes subject to such assignmentassignment and payment of the processing fee, the Agent shall, if such Assignment and Acceptance has been completedcompleted and is in substantially the form of Exhibit K hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within ten Business Days after parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or a portion of its receipt rights, obligations or rights and obligations under this Credit Agreement (including all or a portion of its Commitment or its Loans); provided, however, that (i) such Lender's obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such noticeobligations, (iii) the Borrower, at its own expense, participant shall execute and deliver be entitled to the Agent benefit of the yield protection provisions contained in exchange Section 2.10, Section 2.16 and Section 2.17, and the right of set-off contained in Section 7, and (iv) the Borrowers shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrowers relating to the Loans and other obligations owing to such Lender and to approve any amendment, modification, or waiver of any provision of this Credit Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, extending any scheduled principal payment date or date fixed for the surrendered Note payment of interest on such Loans or Notes, or extending its Commitment).
(e) Notwithstanding any other provision set forth in this Credit Agreement, any Lender may at any time assign and pledge all or any portion of its Loans and its Notes a new Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the members of the Consolidated Group in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the order provisions of such assignee in an amount equal Section 10.2 hereof.
1.22 Schedule 2 to the Commitment assumed by it pursuant Credit Agreement is (i) updated to such Assignment reflect updated information regarding the Lenders, their respective Maximum Principal Amounts and Acceptance andPercentages of Commitment, if and (ii) amended and restated to include the assigning Bank has retained a Commitment hereunderTranche B Lenders, a new Note to the order their respective Maximum Tranche B Principal Amounts and Percentages of Tranche B Commitment, as attached.
1.23 The Borrowers will, in consideration of the assigning Bank in an amount equal to establishment of the Tranche B Commitment retained by it hereunder. Such new Note or Notes shall be hereby, permanently terminate commitments under the Lease Financing Facility in an aggregate principal amount equal to the aggregate principal amount Tranche B Commitment promptly upon the effectiveness of such surrendered Note or Notes, shall be dated this Amendment and establishment of the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit C heretoTranche B Commitment hereunder.
1.24 The Lenders, by action of the Required Lenders, acknowledge and consent to the terms of, and authorize and direct the Agent to take appropriate action to enter into, the Security Agreement and the First Amendment to Pledge Agreement, forms of which have been provided to the Lenders.
1.25 The Borrowers covenant and agree that they will deliver Mortgages on those property locations agreed upon with the Agent and the Required Lenders (fi) The Banks maywithin 45 days of the date hereof, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.03the case of unencumbered properties, disclose and (ii) within 90 days of the date hereof, in the case of encumbered properties, together with, in each case certificates of insurance evidencing flood hazard insurance (for improvements located in areas having "special flood hazards"), casualty insurance (including builders' risk and all-risk permanent policies) and liability conforming to the assignee or participant or proposed assignee or participant any public information relating requirements of this Credit Agreement and the other Credit Documents, showing the Agent as sole loss payee with respect to the Borrower andflood hazard and casualty insurance and as additional insured with respect to liability insurance, provided that such proposed assignee or participant executes together with evidence of payment of premiums thereon. Failure to provide the Mortgages and related items in a confidentiality letter, any other information relating to timely manner will constitute an Event of Default under the BorrowerCredit Agreement.
Appears in 1 contract