Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of: (A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment; (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and (C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans; (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree; (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws; (E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds, (F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and (G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that EXCEPT THAT (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Papers without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) EXCEPT as permitted under this SECTION, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement and the other Loan Papers (including including, without limitation, all or a portion of its Commitments Borrowings and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofits Notes); PROVIDED, HOWEVER, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a another Lender or an assignment of the entire remaining amount all of the assigning a Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment 's Rights and obligations under this Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (other Loan Papers, any such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as in an amount at least equal to $5,000,000, but, in no event less than $1,000,000;
(iii) each such assignment by a Lender shall be of a proportionate part constant, and not varying, percentage of all the assigning Lender’s rights of its Rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit Agreement and the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or LoansNotes;
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT F hereto, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the Assignee unless 3,500. Upon execution, delivery, and acceptance of such parties otherwise agree;
(D) the assigneeAssignment and Acceptance Agreement, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under the Loan Papers. Upon the consummation of any assignment pursuant to this SECTION, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Papers. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 13.13, SCHEDULE 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Committed Sums under the Revolving Facility of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this SECTION and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "LENDER" under this Agreement and the Participant shall not constitute a "LENDER" hereunder, (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Revolver Principal Debt for all purposes under this Agreement, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Papers, and (vi) such Lender shall be solely responsible for any reasonwithholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Papers, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time SO LONG AS Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Paper, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (OTHER THAN mandatory prepayments), interest, or fees due under the Loan Papers, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (EXCEPT such reductions as are contemplated by this Agreement), or releases any material Guaranty or all or any substantial portion of the Collateral for the obligation under the Loan Papers (EXCEPT such releases as are contemplated by this Agreement); PROVIDED THAT, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Papers respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (Eor Participant) shall not apply to Affiliated Debt Funds,
(F) control the vote for all of such Lender's portion of the Obligation. Except in the case of an assignment the sale of a participating interest to a Sponsor Affiliated another Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders relevant participation agreement shall not exceed 20% permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the aggregate unpaid principal amount obligation, unless the consent of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated transferring Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and which consent will not be permitted to attend or participate in (or receive any notice ofunreasonably withheld) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledhas been obtained.
Appears in 1 contract
Sources: Revolving Credit Agreement (Integrated Orthopedics Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(f) and (ii) no h), a Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loan) to it) with the prior written consent one or more Persons (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a“Transferee”), (e), (f) or (g) has occurred and is continuing, any other Person; provided, furtherhowever, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that so long as no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender Default or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment , no such Transferee shall be made as an assignment a BDC or a wholly-owned Subsidiary of a proportionate part BDC. Notwithstanding anything to the contrary in this Agreement, but subject to the immediately proceeding proviso, there shall be no limitation or restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee and such Lender shall execute and deliver for acceptance and recording in the Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lenderparty hereto but, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to matters occurring before such assignment, shall nevertheless continue to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon and shall inure to the benefit of Company and the parties hereto Permitted Borrowers and the Banks and their respective successors and assigns permitted hereby assigns.
(including b) The foregoing shall not authorize any Affiliate assignment by Company or any of the Issuing Bank Permitted Borrowers, of its rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of the Banks.
(c) The Company, Permitted Borrowers and Agent acknowledge that issues each of the Banks may at any Letter time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Bank's rights and obligations hereunder and under the other Loan Documents to any commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of Credit)which institution is approved by Company and Agent, except such approval not to be unreasonably withheld or delayed; provided, however, that (i) no Borrower may assign the approval of Company shall not be required upon the occurrence and during the continuance of a Default or otherwise transfer any Event of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) Default and (ii) no Lender may assign the approval of Company and Agent shall not be required for any such sale, transfer, assignment or otherwise transfer participation to the Affiliate of an assigning Bank, any other Bank or any Federal Reserve Bank. The Company and each of the Permitted Borrowers authorize each Bank to disclose to any prospective assignee or participant, once approved by Company and Agent, any and all financial information in such Bank's possession concerning the Company and such Permitted Borrower which has been delivered to such Bank pursuant to this Agreement; provided that each such prospective participant shall have executed a confidentiality agreement consistent with the terms of Section 13.13 hereof.
(d) Each assignment by a Bank of any portion of its rights or and obligations hereunder and under the other Loan Documents, other than assignments to such Bank's Affiliates under Section 13.8(f) hereof, shall be made pursuant to an Assignment Agreement ("Assignment Agreement") substantially (as determined by Agent), in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall cover all of the Notes issued by Company and the Permitted Borrowers hereunder to the assigning Bank (and not any particular Note or Notes), and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount of Five Million Dollars ($5,000,000);
(iii) no assignment shall violate any "blue sky" or other securities law of any jurisdiction or shall require the Company, any Permitted Borrower or any other Person to file a registration statement or similar application with the United States Securities and Exchange Commission (or similar state regulatory body) or to qualify under the "blue sky" or other securities laws of any jurisdiction; and
(iv) each assignment shall be accompanied by the assignee's joinder to the Intercreditor Agreement, if then in effect; and
(v) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Bank) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), Company, each of the Permitted Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Bank and each assignee; and (y) the assigning Bank shall have delivered to the Agent the original of each Note held by the assigning Bank under this Agreement. From and after the date on which the Agent shall notify Company and the Bank which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Bank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement, Company and the Permitted Borrowers shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Bank, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount retained by such Bank hereunder shall be executed and delivered by the Company and the Permitted Borrowers. Agent, the Banks and the Company and the Permitted Borrowers acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and 125 distribute to Company, the Permitted Borrowers and each of the Banks a revised Exhibit D to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) Each Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable participation agreement):
(i) such Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in accordance this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and Permitted Borrowers relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this SectionAgreement without the consent of the participant (other than a participant which is an Affiliate of such Bank), except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank, and Company, Permitted Borrowers, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank's rights and duties hereunder). Company and each of the Permitted Borrowers each agrees that each participant shall be deemed to have the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Bank under this Agreement, shall be subject to the pro rata recovery provisions of Section 10.3 hereof and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Bank and the Person purchasing such participation, and none of the Company, none of the Permitted Borrowers, the Agent and the other Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Bank of any of its obligations under this Agreement or any of the other Loan Documents (including without limitation the Collateral Documents), and all actions hereunder shall be conducted as if no such participation had been granted.
(f) Each assignment by a Bank to its Affiliates of all or any portion of the Notes, or any Advances thereunder, may be made on such terms and conditions as determined by such Bank (rather than pursuant to Section 13.8(d) hereof), provided however that (i) following each such assignment, the assigning Bank shall remain responsible for the performance of its obligations under this Agreement and the other Loan Documents (including without limitation its obligations in respect of any Notes and Advances thereunder so assigned), and each such Affiliate assignee shall not be deemed a "Bank" hereunder, (ii) Company, the Permitted Borrowers and the Agent shall be entitled to continue to deal solely and directly with such assigning Bank in connection with such Bank's rights and obligations under this Agreement and the other Loan Documents, (iii) such assigning Bank shall retain the sole right and responsibility to enforce the obligations of Company and the Permitted Borrowers (including Company or the applicable Permitted Borrower whose Notes or Advances thereunder have been so assigned) under this Agreement and the other Loan Documents. In connection with assignments to its Affiliates under this Section 13.8(f), an assigning Bank shall act as agent for its Affiliates having received assignments hereunder, and may appoint such Affiliates as such Bank's applicable Eurocurrency Lending Office. Furthermore with respect to such assignments under this Section 13.8(f), it is expressly acknowledged that the assignment fee provided for in Section 13.8(d)(iv) shall not apply.
(g) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall be construed to confer upon on any Person (other than the respective parties hereto, hereto and thereto and their respective successors and assigns assignees and participants permitted hereby (including hereunder and thereunder any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) benefit or any legal or equitable right, remedy or other claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all Notes or the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledDocuments.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this SECTION 14.13, no Lender 60 may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement and the other Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofits Notes, if any); PROVIDED, HOWEVER, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a another Lender or an assignment of the entire remaining amount all of the assigning a Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment 's Rights and obligations under this Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (other Loan Documents, any such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as in an amount at least equal to $5,000,000, but, in no event less than $1,000,000;
(iii) each such assignment by a Lender shall be of a proportionate part constant, and not varying, percentage of all the assigning Lender’s rights of its Rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance (such acceptance not to be unreasonably withheld) an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT F hereto, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the Assignee unless 3,500. Upon execution, delivery, and acceptance of such parties otherwise agree;
(D) the assigneeAssignment and Acceptance Agreement, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation is deemed unenforceable for any reasonobligations, each Sponsor Affiliated Rights, and benefits of a Lender shall vote in such proceedings in under the manner as directed by Loan Documents and the Majority Lendersassigning Lender shall, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, relinquish its rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to all other assignments with all Sponsor Affiliated Lendersthis SECTION, but only upon the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% request of the aggregate unpaid principal amount assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes upon request to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the Term Loans United States of America or a state thereof, then outstanding, (2) no Revolving Credit Loans it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds withholding of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate Taxes in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledaccordance with SECTION 4.6(d).
Appears in 1 contract
Sources: Revolving Credit Agreement (Protection One Alarm Monitoring Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(f) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credith), and so long as such assignment does not result in there being more than eighty (80) Note Purchasers and Participants (to in the extent provided in clause (c) of this Section) andaggregate, to a Note Purchaser may at any time, with the extent expressly contemplated hereby, the Related Parties of each consent of the Administrative Agent, the Issuing Bank Agent and the Lenders) any legal or equitable rightIssuer (such consent not to be unreasonably withheld), remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments Revolving Commitment under this Agreement and the Loans at other Transaction Documents (including all its rights and obligations with respect to the time owing Notes) to itone or more Persons (a “Transferee”); provided, that Issuer consent shall not be required (i) in connection with an assignment of a Note Purchaser’s Note Fundings hereunder, (ii) in connection with a Note Purchaser’s assignment of its Revolving Commitment to an Affiliate of such Note Purchaser or (iii) upon the occurrence and continuance of an Event of Default or Early Wind-Down Trigger Event. Notwithstanding anything to the contrary in this Agreement, prior to the occurrence of an Event of Default, no Note Purchaser shall assign, pledge or otherwise transfer any Note or other Obligation to an Issuer Competitor without the prior written consent of Issuer. The Transferee and such Note Purchaser shall execute and deliver for acceptance and recording in the Note Purchaser Register, a Note Purchaser Addition Agreement, which shall be in form and substance reasonably acceptable to Administrative Agent in its sole discretion (“Note Purchaser Addition Agreement”). Upon such consent not execution, delivery, acceptance and recording, from and after the effective date determined pursuant to be unreasonably withheld or delayed) of:
such Note Purchaser Addition Agreement, (Ai) the Parent Borrower, provided that no consent of the Parent Borrower Transferee thereunder shall be required a party hereto and, to the extent provided in connection with such Note Purchaser Addition Agreement, have the primary syndication of Term Commitments and/or Term Loans or for an assignment to same rights, benefits and obligations as it would if it were a LenderNote Purchaser hereunder, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments the assigning Note Purchaser shall be subject to the following additional conditions:
(A) except in the case relieved of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Note Fundings or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Note Purchaser Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Note Purchaser Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning LenderNote Purchaser’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.
Appears in 1 contract
Sources: Note Issuance and Purchase Agreement (Enova International, Inc.)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Notes, to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Note or delayed) ofNotes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a another Lender, an Affiliate of a Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of Loan Documents, any such partial assignment under the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Revolver Facility shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million following amounts for the Revolver Facility (unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement);provided that, no partial assignment for the Revolver Facility (including any assignment among Lenders) may result in any Lender holding less than $5,000,000 in the Revolver Facility;
(Biii) each partial such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this Agreement, provided that this clause shall not be construed Agreement and the Notes (to prohibit the assignment of extent any Principal Debt owed to such assigning Lender is evidenced by a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments Note or LoansNotes);
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500 3,500, including, without limitation, any assignment between Lenders; provided that, no such fee shall be payable by in respect of any assignment between a Lender and any of its Affiliates; and
(v) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Assignee Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with Section 12.1 (with respect to Administrative Agent) or Section 12.10 (with respect to the Assignee’s compliance procedures other Agents). Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this Section 13.13, Schedule 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Revolver Facility of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (other than Borrower or any Affiliate of Borrower) (each a "Participant") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of Section 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan Documents (except such releases of Guaranties or Collateral as are contemplated in Section 6.4); provided that, in those cases where a Participant is entitled to the benefits of Section 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a manner that is less favorable participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any material respect Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such Sponsor Affiliated assigning Lender than is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the proposed treatment extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any trustee or to any other representative of similar Obligations held holders of obligations owed or securities issued by Lenders that are not Sponsor Affiliated Lenderssuch fund as security for such obligations or securities; provided that any transfer to any Person upon the enforcement of such pledge or security interest may only be made subject to this clause (E) Section 13.13. No such assignment or pledge shall not apply to Affiliated Debt Funds,release the assigning Lender from its obligations hereunder.
(Fg) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, Any Lender may furnish any information concerning the aggregate principal amount of all Loans Loan Parties and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted Subsidiaries thereof in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on possession of such matter; provided that Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants) and to counterparties under a Financial Hedge issued by a Lender or an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was Affiliate of a Lender; and
(G) notwithstanding anything herein Lender to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired extent permitted by Holdings or its Subsidiaries under such Section shall be immediately cancelledthe Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnified Parties) any legal or equitable right, remedy remedy, or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Revolving Credit Commitment, Notes, and Loans (including for purposes of this SECTION 10.2(b) participations in the Loans Letter of Credit Exposure) at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, ); provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment 's Revolving Credit Commitment, Notes, and Loans at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Revolving Credit Commitment or (which for this purpose includes Loans of the assigning Lender outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to the Administrative Agent) , shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consent consents (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this AgreementAgreement with respect to the Revolving Credit Commitment, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights Notes, and obligations in respect of one Class of Commitments or Loans;
Loans assigned, (Ciii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
3,500, and (Div) the assigneeassignee Lender, if it shall is not be a LenderLender prior to the effectiveness of such assignment, shall deliver an administrative questionnaire to the Administrative Agent. Subject to acceptance and recording thereof by Administrative Agent an Administrative Questionnaire pursuant to SECTION 10.2(c), from and after the effective date specified in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower each Assignment and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Acceptance Agreement, each Sponsor Affiliated have the rights of a Lender shall vote in such proceedings in under this Agreement, and the manner as directed by the Majority Lendersassigning Lender thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Acceptance Agreement, be released from its obligations under this Agreement (and, in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to Assignment and Acceptance Agreement covering all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated assigning Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders's rights under this Agreement, such Sponsor Affiliated Lender will shall cease to be deemed a party hereto but shall continue to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees benefits of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledSECTION 8.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with this Sectionthe provisions of SECTION 13.13(b), (ii) by way of participation in accordance with the provisions of SECTION 13.13(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSECTION 13.13(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.. LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT 61
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may at any time assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Commitment and the Loans outstanding Borrowings (including for purposes of this SECTION 13.13(b) participations in L/C Obligations) at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of); provided that:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s 's Commitment and outstanding Borrowings and participations in Unreimbursed Amounts at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender (which for this purpose includes Borrowings and participations in Unreimbursed Amounts outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Administrative Agent) Assignment and Assumption, as of the Trade Date, shall not be less than $5.0 million or5,000,000 or a whole multiple of $500,000 in excess thereof, in the case and after such assignment, no Lender shall hold a Commitment of Term Loans, less than $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consent consents (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
; (Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment or unfunded participation in Unreimbursed Amounts must be approved by Administrative Agent and each L/C Issuer holding more than thirty three percent (33%) of the L/C Obligations (in each case which approval shall not be construed to prohibit unreasonably withheld) unless the assignment of Person that is the proposed assignee is itself a proportionate part of all Lender (whether or not the assigning Lender’s rights proposed assignee would otherwise qualify as an Eligible Assignee); and obligations in respect of one Class of Commitments or Loans;
(Civ) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable 3,500. Subject to acceptance and recording thereof by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire pursuant to SECTION 13.13(c), from and after the effective date specified in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower each Assignment and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAssumption, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that a party to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelyAgreement and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Assumption, each Sponsor Affiliated have the rights and obligations of a Lender shall vote in such proceedings in under this Agreement, and the manner as directed by the Majority Lendersassigning Lender thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Assumption, be released from its obligations under this Agreement (and, in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to Assignment and Assumption covering all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated assigning Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders 's rights and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lendersobligations under this Agreement, such Sponsor Affiliated Lender will shall cease to be deemed a party hereto but shall continue to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
the benefits of SECTIONS 4.1, 4.5, and 4.6 (G) notwithstanding anything herein with respect to facts and circumstances occurring prior to the contrary, Holdings and its Subsidiaries may not be assignees effective date of any Loans or Commitments other than Term Loans pursuant to Section 2.08(jsuch assignment) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled11.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Centex Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon and shall inure to the benefit of Borrower, Agent and the parties hereto Lenders and their respective successors and assigns permitted hereby assigns.
(including b) The foregoing shall not authorize any Affiliate of the Issuing Bank that issues any Letter of Credit)assignment by Borrower, except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate approval of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause Lenders.
(c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of The Borrower and Agent acknowledge that each of the Administrative AgentLenders may at any time and from time to time, without cost of the Issuing Bank and the Lenders) any legal or equitable rightBorrower, remedy or claim under or by reason of this Agreement.
(i) Subject subject to the terms and conditions set forth hereof, assign or grant participations in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its such Lender's rights and obligations under this Agreement hereunder (including all on a pro rata or a portion non-rata basis) and under the other Loan Documents to any commercial Lender, savings and loan association, insurance company, pension fund, mutual fund, loan or debt fund, commercial finance company or other similar financial institution, the identity of its Commitments which institution is approved by Borrower and the Loans at the time owing to it) with the prior written consent (Agent, such consent approval not to be unreasonably withheld or delayed) of:
; provided, however, that (Ai) the Parent Borrowerapproval of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default, provided that (ii) the approval of Borrower and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any 71 Federal Reserve Lender and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and its Subsidiaries without the consent of the Parent Borrower, which consent may be withheld in the sole discretion of Borrower. The Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans authorizes each Lender to disclose to any prospective assignee or for an assignment to a Lenderparticipant, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred once approved by Borrower and is continuingAgent, any other Person; provided, further, that if and all financial information in such Lender's possession concerning the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented which has been delivered to such assignment;Lender pursuant to this Agreement.
(Bd) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an Each assignment of a given Class of Loans to by a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a Term Loan pro rata or for (but only with the consent of the Agent) a non pro-rata basis, shall be made pursuant to an Assignment Agreement ("Assignment Agreement") substantially (as determined by Agent) in the form attached hereto as Exhibit N (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender's Affiliates or to a Federal Reserve Lender) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment to a Lender, an Affiliate fee of a Lender or an Approved Fund.$3,500 for each such assignment; and
(ii) Assignments each assignment shall be in an amount approved by Agent, such approval not to be unreasonably withheld. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender in writing that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower's receipt of written notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Obligations evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1 72 to this Agreement setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(e) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following additional conditions:restrictions (which shall be set forth in the applicable Participation Agreement):
(Ai) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement this Section 10.2 with respect to such assignment is delivered to rights of setoff and the Administrative Agentbenefits of Sections 3.4 through 3.8 hereof, a participant shall have no direct rights or remedies hereunder; (iii) a participant shall not be less than $5.0 million orreassign or transfer, or grant any sub-participations in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower participation interest hereunder or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lenderpart thereof; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.
Appears in 1 contract
Sources: Loan Agreement (Summa Industries)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower the Borrowers may not assign or otherwise transfer any of its their rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such any Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreementto an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), expressed which consent shall not be required (A) during the existence of a Default or impliedEvent of Default, shall be construed to confer upon or (B) during the existence of a default under any Person material Contractual Obligation of any Borrower; provided, further, that, (other than the parties hereto, their respective successors and assigns permitted hereby (including any to a Lender or an Affiliate of the Issuing Bank that issues any Letter of Credita Lender), Participants the amount of Loans of the assigning Lender subject to each assignment (aggregating any such assignments by Affiliates) shall not be less than $15,000,000, unless the Borrowers and the Agent otherwise agree. Subject to acceptance and recording thereof pursuant to this Section 9.6, from and after the extent provided effective date specified in clause (c) of this Section) each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section 9.6, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrowers or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement. Any agreement 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 Loan Documents (the “Participant Register”); provided that this clause no Lender shall not be construed have any obligation to prohibit disclose all or any portion of the assignment Participant Register (including the identity of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments any participant or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level any information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment relating to a Sponsor Affiliated Lenderparticipant’s interest in any commitments, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code andloans, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any its other Loan Party obligations under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that Loan Document) to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, Person except to the extent that such disclosure is necessary to establish that such commitment, loan, 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 plan notice to the contrary. For the avoidance of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lendersdoubt, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender Agent (in its capacity as Agent) shall have no responsibility for maintaining a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledParticipant Register.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including Each Lender may at any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may time assign all or otherwise transfer any a portion of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) delegate all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loans) to one or more Persons (a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a"TRANSFEREE"), (e), (f) or (g) has occurred and is continuing, any other Person; provided, furtherthat such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business DaysLender Addition Agreement, it which shall be deemed in form and substance reasonably acceptable to have consented to such assignment;
(B) the Administrative AgentAgent in its Permitted Discretion and, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
, without the approval of the Parent (which approval shall not be unreasonably withheld or delayed), CapitalSource may not transfer such rights if, as a result of such transfer, (A) CapitalSource shall cease to constitute the Requisite Lenders or (B) each partial assignment with respect to the transfer of any Canadian Obligations to a U.S.-based Lender, additional amounts would be imposed by such Lender on the Canadian Borrowers as a result of withholding taxes under Section 6.13(b). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be made a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as an assignment it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a proportionate part Lender Addition Agreement covering all or the remaining portion of all the an assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 13.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled13.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Corrpro Companies Inc /Oh/)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(f) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credith), and so long as such assignment does not result in there being more than eighty (80) Note Purchasers and Participants (to in the extent provided in clause (c) of this Section) andaggregate, to a Note Purchaser may at any time, with the extent expressly contemplated hereby, the Related Parties of each consent of the Administrative Agent, the Issuing Bank Agent and the Lenders) any legal or equitable rightIssuer (such consent not to be unreasonably withheld), remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments Revolving Commitment under this Agreement and the Loans at other Transaction Documents (including all its rights and obligations with respect to the time owing Notes) to itone or more Persons (a “Transferee”); provided, that Issuer consent shall not be required (i) in connection with an assignment of a Note Purchaser’s Note Fundings hereunder, (ii) in connection with a Note Purchaser’s assignment of its Revolving Commitment to an Affiliate of such Note Purchaser or (iii) upon the occurrence and continuance of an Event of Default or Early Wind-Down Trigger Event. Notwithstanding anything to the contrary in this Agreement, prior to the occurrence of an Event of Default, no Note Purchaser shall assign, pledge or otherwise transfer any Note or other Obligation to an Issuer Competitor without the prior written consent of Issuer. The Transferee and such Note Purchaser shall execute and deliver for acceptance and recording in the Note Purchaser Register, a Note Purchaser Addition Agreement, which shall be in form and substance reasonably acceptable to Administrative Agent in its sole discretion (“Note Purchaser Addition Agreement”). Upon such consent not execution, delivery, acceptance and recording, from and after the effective date determined pursuant to be unreasonably withheld or delayed) of:
such Note Purchaser Addition Agreement, (Ai) the Parent Borrower, provided that no consent of the Parent Borrower Transferee thereunder shall be required a party hereto and, to the extent provided in connection with such Note Purchaser Addition Agreement, have the primary syndication of Term Commitments and/or Term Loans or for an assignment to same rights, benefits and obligations as it would if it were a LenderNote Purchaser hereunder, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments the assigning Note Purchaser shall be subject to the following additional conditions:
(A) except in the case relieved of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Note Fundings or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Note Purchaser Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Note Purchaser Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning LenderNote Purchaser’s rights and obligations under this Agreement, provided that this clause such assigning Note Purchaser shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lenderparty hereto but, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to matters occurring before such assignment, shall nevertheless continue to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Note Issuance and Purchase Agreement (Enova International, Inc.)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower the Borrowers may not assign or otherwise transfer any of its their rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such any Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreementto an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), expressed which consent shall not be required (A) during the existence of a Default or impliedEvent of Default, shall be construed to confer upon or (B) during the existence of a default under any Person material Contractual Obligation of any Borrower; provided, further, that, (other than the parties hereto, their respective successors and assigns permitted hereby (including any to a Lender or an Affiliate of the Issuing Bank that issues any Letter of Credita Lender), Participants the amount of Loans of the assigning Lender subject to each assignment (aggregating any such assignments by Affiliates) shall not be less than $15,000,000, unless the Borrowers and the Agent otherwise agree. Subject to acceptance and recording thereof pursuant to this Section 9.6, from and after the extent provided effective date specified in clause (c) of this Section) each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of). The Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning ▇▇▇▇▇▇ and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section 9.6, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrowers or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent BorrowerBorrowers, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement. Any agreement 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. 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 the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that this clause no Lender shall not be construed have any obligation to prohibit disclose all or any portion of the assignment Participant Register (including the identity of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments any participant or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level any information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment relating to a Sponsor Affiliated Lenderparticipant’s interest in any commitments, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code andloans, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any its other Loan Party obligations under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that Loan Document) to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, Person except to the extent that such disclosure is necessary to establish that such commitment, loan, 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 plan notice to the contrary. For the avoidance of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lendersdoubt, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender Agent (in its capacity as Agent) shall have no responsibility for maintaining a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledParticipant Register.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(c) and (ii) no d), a Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loan) to it) with one or more Persons other than the prior written consent (such consent not to be unreasonably withheld Borrower or delayed) of:
(A) the Parent Borrower, provided that no consent any Affiliate of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to proviso, each, a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed“Transferee”), provided provided, that no such consent of the Parent Borrower shall be required if unless an Event of Default has occurred and is continuing;
continuing (B) in which event no such restriction shall apply), no natural person, Non-Funding Lender or Affiliate of a Non-Funding Lender, direct competitor of Borrower or Holdings or any Person who is directly engaged in consumer lease financing to big box retail, or is controlled by a Person which is a direct competitor of Borrower or who is directly engaged in consumer lease financing to big box retail, shall constitute a Transferee hereunder and Borrower shall have a right to consent to any Transferee that is not an Approved Fund of a Lender (each partial assignment such Person that is precluded from being a Transferee pursuant to this proviso, an “Ineligible Transferee”). Notwithstanding anything to the contrary in this Agreement, other than restrictions set forth in the definition of “Transferee”, there shall be made no limitation or restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee and such Lender shall execute and deliver for acceptance and recording in the Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its Permitted Discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as an assignment it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Advances or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a proportionate part Lender Addition Agreement covering all or the remaining portion of all the an assigning Lender’s rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lenderparty hereto but, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to matters occurring before such assignment, shall nevertheless continue to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Each Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loans) to itone or more Persons (a "TRANSFEREE"); provided, (i) with that such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the prior written consent Register, a Lender Addition Agreement and (ii) such consent assignments shall involve Obligations of not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund less than $5,000,000 or, if an Event less, the remaining Commitment of Default under Section 10.01(a)such Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (e)i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(Bii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Acorn Products Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 13.2(f) and (ii) no h), Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loan) to it) with one or more Persons constituting a Qualified Transferee, Eligible Transferee or Qualified Institutional Lender (each as defined in the prior written consent applicable Intercreditor Agreement (a "TRANSFEREE")); provided, that such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower assignment shall be required in connection with the primary syndication an amount of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Personnot less than $5,000,000; provided, further, that if notwithstanding anything to the Parent Borrower shall contrary in this Agreement (including, without limitation, any limitation set forth in this Section 13.2(a)), CapitalSource hereby agrees that so long as (A) any Obligations (other than indemnity obligations under the Loan Documents that are not respond to a request then due and payable or for a consent to an assignment within 10 Business Dayswhich any events or claims that would give rise thereto are not then due and payable or for which any events or claims that would give rise thereto are not then pending) remain outstanding, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender Default or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
, and (BC) each partial assignment shall be made as an assignment CapitalSource has not previously assigned any of its rights during the continuance of a proportionate part Default or Event of all Default, its aggregate Commitments shall equal at least fifty and one-tenth of one percent (50.1%) of the assigning Lender’s rights and obligations under total aggregate Commitments. Notwithstanding anything to the contrary in this Agreement, provided that this clause there shall not be construed no limitation or restriction on Lender's ability to prohibit the assignment assign, pledge or otherwise transfer any Note or other Obligation if an Event of a proportionate part of all the assigning Lender’s rights Default shall have occurred. The Transferee and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment Lender shall execute and deliver to for acceptance and recording in the Administrative Agent an Assignment Register, a Lender Addition Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 in form and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that substance reasonably acceptable to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to its sole discretion. Upon such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause execution, delivery, acceptance and Loan and Security Agreement (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.Ashford)
Appears in 1 contract
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions Subject to Section 12.2(b) hereof, each Lender Party may assign all or any portion of this Agreement its rights and delegate all or any portion of its obligations under any Loan Document to one or more Eligible Assignees in accordance with the terms hereof (each, a “Transferee”) with the prior written consent of Agent and, so long as no Event of Default exists, Borrowers (which consent of Borrowers shall not be binding upon unreasonably withheld, delayed or conditioned); provided that at any time that an Event of Default exists, such assignments shall not be restricted to Eligible Assignees. Each Lender Party may furnish any information concerning the Credit Parties in the possession of that Lender Party from time to time to assignees and inure participants (including prospective assignees and participants), subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that confidentiality provisions hereunder.
(i) Any Transfer hereunder shall be effective only upon satisfaction of the following conditions: (A) execution and delivery by the Transferee, the assigning Lender and Agent of an original Lender Addition Agreement and any documents required thereunder, (B) Agent shall have accepted such Lender Addition Agreement and recorded in the Register the names and addresses, Commitment, principal amount of the Loans owing, and Notes, if any, evidencing such transfer, and (C) receipt by Agent from such Transferee of a processing fee in the amount of $3,500. The parties hereto hereby agree that upon the effectiveness of each such Transfer, the Transferee shall become a Lender Party hereunder and the assigning Lender shall be relieved of its obligations hereunder in accordance with such Lender Addition Agreement. Within a reasonable amount of time after the effectiveness of any Transfer, the assigning Lender shall surrender any outstanding applicable Notes held by it, and Borrowers, at their own expense, shall promptly (and in any event within five (5) Business Days thereof) execute and deliver to Agent, new Notes to reflect the interest held by the assigning Lender and its Transferee. Agent shall maintain a copy of each Lender Addition Agreement delivered to it and the Register, which shall be available for inspection by any party hereto at any reasonable time upon reasonable prior notice to Agent.
(ii) Notwithstanding anything in the Loan Documents, (X) no Borrower may CapitalSource Entity shall be required to comply with Section 12.2(b)(i) in connection with any transaction involving any other CapitalSource Entity or any of its or their lenders or funding or financing sources, and none of the foregoing shall be considered a Transferee, and (Y) there shall be no limitation or restriction on (I) the ability of any CapitalSource Entity to assign or otherwise transfer any of its rights Loan Document, Commitment or obligations hereunder without the prior written consent of each Lender Obligation to any other CapitalSource Entity or any lender or financing or funding source or (and II) any attempted assignment such lender’s or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may funding or financing source’s ability to assign or otherwise transfer its rights any Loan Document, Commitment or obligations hereunder except in accordance Obligation; provided, however, that CapitalSource shall continue to be liable as a “Lender” under the Loan Documents unless such other Person complies with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors provisions of Section 12.2(b)(i) and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause thereby becomes a “Lender.”
(c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth Each Lender Party may sell participations in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion any part of its rights and obligations under this Agreement the Loan Documents to one or more Persons (including each, a “Participant”). Upon any such sale, (i) such Lender’s obligations under each Loan Document shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan and all or a portion of its Commitments parties hereto shall continue to deal solely and the Loans at the time owing to it) directly with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.Loan
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreementto an assignee (“Assignee”); provided that, expressed on or impliedprior to the second anniversary of the Closing Date, the Lenders may not assign or otherwise transfer their rights or obligations hereunder to an Assignee other than a Lender or an Affiliate of a Lender without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), which consent shall not be construed to confer upon required during the existence of (A) a Default or Event of Default or (B) a default under any Person material Contractual Obligation of any Borrower; provided, further, that, following the second anniversary of the Closing Date (other than the parties hereto, their respective successors and assigns permitted hereby (including any to a Lender or an Affiliate of the Issuing Bank that issues any Letter of Credita Lender), Participants the amount of Loans of the assigning Lender subject to each assignment (aggregating any such assignments by Affiliates) shall not be less than $15,000,000, unless the Borrowers and the Agent otherwise agree. Subject to acceptance and recording thereof pursuant to this Section 9.6, from and after the extent provided effective date specified in clause (c) of this Section) each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section 9.6, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrower or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement. Any agreement 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 Loan Documents (the “Participant Register”); provided that this clause no Lender shall not be construed have any obligation to prohibit disclose all or any portion of the assignment Participant Register (including the identity of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments any participant or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level any information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment relating to a Sponsor Affiliated Lenderparticipant’s interest in any commitments, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code andloans, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any its other Loan Party obligations under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that Loan Document) to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, Person except to the extent that such disclosure is necessary to establish that such commitment, loan, 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 plan notice to the contrary. For the avoidance of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lendersdoubt, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender Agent (in its capacity as Agent) shall have no responsibility for maintaining a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledParticipant Register.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Each Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans other Loan Documents (including all its rights and obligations with respect to the Loans) to one or more Persons (a "TRANSFEREE"); PROVIDED, that such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, a Lender Addition Agreement, substantially in the form of EXHIBIT C; PROVIDED FURTHER, that any such assignment shall be in a Commitment amount of at least $1,000,000 (or such lesser amount if such amount is a complete assignment of all of such Lender's Commitment). Upon such execution, delivery, acceptance and recording, from and after the time owing effective date determined pursuant to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:Lender Addition
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower Transferee thereunder shall be required a party hereto and, to the extent provided in connection with such Lender Addition Agreement, have the primary syndication of Term Commitments and/or Term Loans or for an assignment to same rights, benefits and obligations as it would if it were a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a)Lender hereunder, (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(Bii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees benefits of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledSECTION 12.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gardenburger Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofits Notes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower Each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except Except in the case of an assignment to a another Lender, an Affiliate of a Lender any Lender, or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of the assigning Lender’s Commitment or Loans of Loan Documents, any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such partial assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) under any Facility shall not be less than $5.0 million orthe following amounts for the Facility indicated, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing, Borrower consent thereto in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement): Facility Minimum Assignment -------- ------------------ Revolver Facility $5,000,000 (inclusive of any concurrent assignments under the Term Loan Facility by the assigning Lender to the same assignee) Term Loan Facility $5,000,000 (inclusive of any concurrent assignments under the Revolver Facility or the Term Loan Facility by the assigning Lender to the same assignee) ; provided that, no partial assignment for any Facility (including any assignment among Lenders) may result in any Lender holding less than $500,000 in any Facility;
(Biii) each partial Each such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this Agreement, provided the Notes and both Facilities so that this clause shall not be construed to prohibit both the assignment of a proportionate part of all assignee and the assigning Lender’s rights Lender will at all times hold equivalent percentages of the Revolver Facility and obligations in respect of one Class of Commitments or Loansthe Term Loan Facility;
(Civ) the The parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement substantially in the form of EXHIBIT F, together with any Notes subject to such assignment and a processing and recordation fee of $3,500 payable by 3,500; and
(v) So long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Assignee Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with SECTION 12.1 (with respect to Administrative Agent) or SECTION 12.10 (with respect to the Assignee’s compliance procedures other Agents). Upon execution, delivery, acceptance, and applicable laws, including Federal recordation of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation is deemed unenforceable for any reasonobligations, each Sponsor Affiliated Rights, and benefits of a Lender shall vote in such proceedings in under the manner as directed by Loan Documents, and the Majority Lendersassigning Lender shall, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to all other assignments with all Sponsor Affiliated Lendersthis Section, but only upon the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% request of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans assignor or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.assignee made through Administrative Agent,
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of CreditSection 12.2(h), except that (i) no Borrower may each Lender may, at any time and from time to time, assign all or otherwise transfer any portion of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) delegate all or a portion of its rights and obligations under this Agreement and the other Loan Documents in a minimum amount of $1,000,000 (or 100% of any remaining Commitment less than $1,000,000) (including all or a portion of its Commitments rights and obligations with respect to the Loans at the time owing Loan) to itone or more Eligible Assignees (each, a “Transferee”) with the prior written consent (such consent not of Agent and, to be unreasonably withheld the extent no Default or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has shall have occurred and is be continuing, with the prior written consent of Borrower (which consent of Borrower shall not be unreasonably withheld, delayed or conditions, or required if any other PersonDefault or Event of Default exists); provided, furtherthat such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business DaysLender Addition Agreement, it which shall be deemed in form and substance acceptable to have consented Agent in its Permitted Discretion. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such assignment;
Lender Addition Agreement, (Bi) the Administrative Agent, provided that no consent of the Administrative Agent Transferee thereunder shall be required for an assignment a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations of a given Class of Loans to a Lender holding such Class of Loanshereunder, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(Cii) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Lender Addition Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon Each Loan Document binds and inure inures to the benefit of the parties hereto thereto, any intended beneficiary thereof, and each of their respective successors and assigns permitted hereby (including assigns. No Lender may transfer, pledge, assign, sell any Affiliate participation in, or otherwise encumber its portion of the Issuing Bank that issues any Letter of Credit), Obligation except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer as permitted by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementSECTION 14.12.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees financial institutions approved by Borrower and Agent (each, an “Assignee”which approval shall not be unreasonably withheld) (each a "PURCHASER") all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitments); PROVIDED, HOWEVER, THAT
(i) except in the case of an assignment to another Lender or an assignment of all of a Lender's rights and obligations under this Agreement, any such partial assignment shall be in an amount at least equal to $10,000,000 or an integral multiple of $1,000,000 in excess thereof;
(ii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement and the Notes; and
(iii) the parties to such assignment shall execute and deliver to Agent for its acceptance an Assignment and Acceptance in the form of EXHIBIT I, together with any Note subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement. Upon the consummation of any assignment pursuant to this SECTION 14.12(b), the assignor, Agent and Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is not incorporated under the laws of the U.S. or a state thereof, it shall deliver to Borrower and Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 3.20.
(c) Agent shall maintain at its address referred to in SECTION 14.3 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 Lenders and the Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Agent and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT I, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in all or a portion of its rights, obligations or rights and obligations under this Agreement (including all or a portion of its Commitments or its Loans); PROVIDED, HOWEVER, THAT (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Participant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15 through 3.20 (however, no Participant is entitled to receive any greater payment than the transferor Lender would have been entitled to receive) and the Loans at the time owing to itright of set-off contained in SECTION 3.12, and (iv) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a such Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that and such Lender shall retain the sole right to enforce the obligations of Borrower relating to its Loans and its Notes and to approve any amendment, modification, or waiver of any provision of this clause 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 payment of interest on such Loans or Notes, or extending its Commitments).
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge all or any portion of its Loans and its Notes 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 not be construed to prohibit the assignment of a proportionate part of all release the assigning Lender’s rights and Lender from its obligations in respect of one Class of Commitments or Loans;hereunder.
(Cg) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level Any Lender may furnish any information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent concerning Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings its Subsidiaries in the manner as directed by the Majority Lenders, except possession of such Lender from time to the extent that any plan of reorganization proposes time to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause Purchasers and Participants (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans including prospective Purchasers and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledParticipants).
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) the Borrowers may not, except as otherwise permitted under the Loan Documents, assign or otherwise transfer any of its Rights or obligations hereunder without the prior written consent of each Holder and no Borrower Holder may assign or otherwise transfer any of its rights or obligations hereunder without except (i) to an Eligible Assignee in accordance with the prior written consent provisions of each Lender Section 14.12(b), (ii) by way of participation in accordance with the provisions of Section 14.12(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 14.12(f) (and any other attempted assignment or transfer by such Borrower without such consent any party hereto shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSection 14.12(d) and, to the extent expressly contemplated hereby, the Related Parties Affiliates of each of the Administrative Agent, the Issuing Bank Agent and the LendersHolders) any legal or equitable rightRight, remedy remedy, or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, Any Holder may at any Lender may time assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time Aggregate Principal Debt owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, ); provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment Holder's Aggregate Principal Debt at the time owing to it or Loans its Discount Notes or in the case of any Classan assignment to a Holder or an Affiliate of a Holder or a Related Fund with respect to a Holder, the aggregate amount of the Commitment or Loans Aggregate Principal Debt of the assigning Lender Holder subject to each such assignment (determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to the Administrative AgentAgent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5.0 million or1,000,000, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent and, so long as no Default or Potential Default has occurred and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
; (Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights Holder's Rights and obligations under this AgreementAgreement with respect to the Term Loan Principal Debt or the Discount Notes assigned, provided except that this clause (ii) shall not be construed to prohibit the assignment any Holder from assigning all or a portion of a proportionate part of all the assigning Lender’s rights its Rights and obligations in respect of one Class of Commitments or Loans;
among separate Tranches on a non-pro rata basis; and (Ciii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable by 3,500, and the Assignee unless such parties otherwise agree;
(D) the assigneeEligible Assignee, if it shall not be a LenderHolder, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information as Administrative Agent shall reasonably request. Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 14.12(c), from and after the effective date specified in accordance with the Assignee’s compliance procedures each Assignment and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAssumption, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that a party to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelyAgreement and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Assumption, each Sponsor Affiliated Lender shall vote in such proceedings in have the manner as directed by rights and obligations of a Holder under this Agreement, and the Majority Lendersassigning Holder thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Holder's Rights and obligations under this Agreement, such Holder shall cease to be a manner that is less favorable in any material party hereto) but shall continue to be entitled to the benefits of Sections 4, 12, and 14 with respect to facts and circumstances occurring prior to the effective date of such Sponsor Affiliated Lender assignment. Any assignment or transfer by a Holder of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Holder of a participation in such rights and obligations in accordance with Section 14.12(d).
(c) Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in St. Louis, Missouri a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Holders, Aggregate Principal Amount owing to, each Holder pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrowers, Administrative Agent, and the Holders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Holder, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Holder may at any time, without the consent of, or notice to, any Borrower or Administrative Agent, sell participations to any Person (other than a natural person or any Borrower or any of Borrowers' Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Holder's Rights and/or obligations under this Agreement (including all or a portion of the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated LendersAggregate Principal Debt owing to it); provided that (i) such Holder's obligations under this clause (E) Agreement shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lenderremain unchanged, (1ii) after giving effect such Holder shall remain solely responsible to the other parties hereto for the performance of such assignmentobligations, and (iii) Borrowers, Administrative Agent, and the other Holders shall continue to all other assignments deal solely and directly with all Sponsor Affiliated Lenderssuch Holder in connection with such Holder's Rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Holder sells such a participation shall provide that such Holder 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 Holder will not, without the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% consent of the aggregate unpaid principal amount of the Term Loans then outstandingParticipant, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned agree to any Sponsor Affiliated Lenderamendment, (3) no proceeds modification, or waiver with respect to the following: extending the due date for payment of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender any amount in respect of principal (other than an Affiliated Debt Fundmandatory prepayments), interest, or fees due under the Loan Documents, reducing the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releasing all or any substantial portion of the Collateral for the Obligation under the Loan Documents (except such releases of Collateral as are contemplated in Section 6.3) will not receive information that affects such Participant. Subject to Section 14.12(e), Borrowers agree that each Participant shall be entitled to the benefits of Section 4 to the same extent as if it were a Holder and had acquired its interest by assignment pursuant to Section 14.12(b). To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 3.14 as though it were a Holder, provided solely such Participant agrees to Lenders and will be subject to Section 3.13 as though it were a Holder.
(e) A Participant shall not be permitted entitled to attend or participate in (or receive any notice ofgreater payment under Section 4 than the applicable Holder would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Borrowers' prior written consent. A Participant that would is not incorporated under the Laws of the United States of America or a state thereof shall not be entitled to the benefits of Section 4.6 unless Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 4.6(d) Lender meetings as though it were a Holder.
(f) Any Holder may at any time pledge or conference calls and (5) for purposes assign a security interest in all or any portion of its Rights under this Agreement to secure obligations of such Holder, including without limitation any amendment, waiver pledge or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as assignment to secure obligations to a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matterFederal Reserve Bank; provided that an Affiliated Debt Fund will not be subject to no such voting limitations and will be entitled to vote pledge or assignment shall release such Holder from any of its obligations hereunder or substitute any such pledgee or assignee for such Holder as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledparty hereto.
Appears in 1 contract
Sources: Term Loan and Note Purchase Agreement (Sun Healthcare Group Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Revolver Notes -- to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Revolver Note or delayed) ofRevolver Notes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a another Lender, an Affiliate of a Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of Loan Documents, any such partial assignment under the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Revolver Facility shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 2,500,000 (unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement); provided that, no partial assignment for the Revolver Facility (including any assignment among Lenders) may result in any Lender holding less than $1,000,000 in the Revolver Facility;
(Biii) each partial such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this AgreementAgreement and the Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes), provided except that this clause (iii) shall not be construed to prohibit the assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations in respect of one Class of Commitments or Loansthe Revolver Facility;
(Civ) the parties to each such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of Exhibit F hereto, together with any Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(v) so long as any Lender is the Administrative Agent an Assignment under this Agreement, together with a processing such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and recordation fee will not enter into any Assignment and Acceptance Agreement that would have the effect of $3,500 payable by such Lender assigning all of its Rights, duties, or obligations under the Assignee Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with the Assignee’s compliance procedures Section 12.1. Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Revolver Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this Section 13.13, Schedule 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Revolver Facility of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (other than Borrower or any Affiliate of Borrower) (each a "Participant") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of Section 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan Documents (except such releases of Guaranties or Collateral as are contemplated in Section 6.5); provided that, in those cases where a Participant is entitled to the benefits of Section 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a manner that is less favorable participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any material respect Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Revolver Notes (to the extent any Principal Debt owed to such Sponsor Affiliated assigning Lender than is evidenced by a Revolver Note or Revolver Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Revolver Notes (to the proposed treatment extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) to any trustee or to any other representative of similar Obligations held holders of obligations owed or securities issued by Lenders that are not Sponsor Affiliated Lenderssuch fund as security for such obligations or securities; provided that any transfer to any Person upon the enforcement of such pledge or security interest may only be made subject to this clause (E) Section 13.13. No such assignment or pledge shall not apply to Affiliated Debt Funds,release the assigning Lender from its obligations hereunder.
(Fg) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, Any Lender may furnish any information concerning the aggregate principal amount of all Loans Loan Parties and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted Subsidiaries thereof in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on possession of such matter; provided that Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants) and to counterparties under a Financial Hedge issued by a Lender or an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was Affiliate of a Lender; and
(G) notwithstanding anything herein Lender to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired extent permitted by Holdings or its Subsidiaries under such Section shall be immediately cancelledthe Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Facility B Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Papers without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Facility B Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Facility B Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Facility B Agreement and the other Facility B Loan Papers (including including, without limitation, all or a portion of its Commitments and Borrowings, its Notes [to the Loans at the time owing extent such Facility B Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofFacility B Lender is evidenced by Notes]); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a another Facility B Lender or an assignment of the entire remaining amount all of the assigning a Facility B Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment 's Rights and obligations under this Facility B Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (other Facility B Loan Papers, any such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as in an amount at least equal to $10,000,000;
(iii) each such assignment by a Facility B Lender shall be of a proportionate part constant, and not varying, percentage of all the assigning Lender’s rights of its Rights and obligations under this Agreement, provided that this clause shall not be construed Facility B Agreement and the Notes (to prohibit the assignment of a proportionate part of all extent the Facility B Principal Debt owed to the assigning Lender’s rights and obligations in respect of one Class of Commitments or LoansFacility B Lender is evidenced by any Notes);
(Civ) each such assignment shall exclude Competitive Borrowings, unless the assigning Facility B Lender is selling all of its Rights and obligations under the Facility B Loan Papers; and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent the Facility B Principal Debt owed to the assigning Facility B Lender is evidenced by any Notes) and a processing and recordation fee of $3,500 payable by the Assignee unless 3,500. Upon execution, delivery, and acceptance of such parties otherwise agree;
(D) the assigneeAssignment and Acceptance Agreement, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation is deemed unenforceable for any reasonobligations, each Sponsor Affiliated Rights, and benefits of a Facility B Lender shall vote in such proceedings in under the manner as directed by Facility B Loan Papers and the Majority Lendersassigning Facility B Lender shall, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, relinquish its rights and be released from its obligations under the Facility B Loan Papers. Upon the consummation of any assignment pursuant to all other assignments with all Sponsor Affiliated Lendersthis Section, but only upon the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% request of the aggregate unpaid assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 10.9.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Facility B Lenders and the Facility B Commitment of, and principal amount of the Term Loans then outstandingBorrowings owing to, each Facility B Lender from time to time (2) no Revolving Credit Loans or Revolving Credit Commitments the "REGISTER"). The entries in the Register shall be assigned to any Sponsor Affiliated Lenderconclusive and binding for all purposes, (3) no proceeds absent manifest error, and Borrower, Administrative Agent and the Facility B Lenders may treat each Person whose name is recorded in the Register as a Facility B Lender hereunder for all purposes of Revolving Credit Loans the Facility B Loan Papers. The Register shall be used, directly available for inspection by Borrower or indirectly, any Facility B Lender at any reasonable time and from time to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes time upon reasonable prior notice. Upon the consummation of any amendmentassignment in accordance with this SECTION 11.14, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will SCHEDULE 2.1 shall automatically be deemed amended (to have voted in the same proportion as extent required) by Administrative Agent to reflect the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that name, address, and respective Facility B Committed Sums of the assignor and assignee.
(d) Upon its receipt of an Affiliated Debt Fund will not be Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such voting limitations assignment (to the extent the Facility B Principal Debt owed to the assigning Facility B Lender is evidenced by any Notes) and will be entitled payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to vote as if it was a Lender; andthe parties thereto.
(Ge) notwithstanding anything herein Subject to the contraryprovisions of this section and in accordance with applicable Law, Holdings any Facility B Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its Subsidiaries may not be assignees portion of the Obligation under Facility B. In the event of any Loans or Commitments other than Term Loans pursuant such sale to Section 2.08(ja Participant, (i) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.such
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except to an assignee ("ASSIGNEE") subject to the following: (x) no one other than Peloton shall be entitled to the benefit of the Board Representation provision that are provided for the benefit of the original Lender in accordance with the Loan Documents set forth in Section 2.8(d); (y) each assignee shall agree to be subject to the Exchange Cap and an Assignment and Acceptance, the form of which is attached hereto as EXHIBIT E; and (z) no transfer of more than 50% of the principal amount of the Loans shall be permitted without the prior written consent of Borrower, such consent not to be unreasonably withheld. Subject to acceptance and recording thereof pursuant to this Section. Nothing , from and after the effective date specified in this Agreement, expressed or implied, each Assignment and Assumption the Assignee thereunder shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee's completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrower or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender's rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a such Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided . Any agreement pursuant to which a Lender sells such a participation shall provide that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge retain the sole right to enforce this Agreement and agree that they are each “insiders” under Section 101(31) to approve any amendment, modification or waiver of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms provision of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated LendersAgreement; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lendersuch agreement may provide that such Lender will not, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, without the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% consent of the aggregate unpaid principal amount of the Term Loans then outstandingloan participant, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned agree to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, modification or waiver or modification that (x) requires the consent of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans directly affected thereby pursuant to Section 2.08(j9.1 and (y) and Term Loans acquired by Holdings or its Subsidiaries under directly affects such Section shall be immediately cancelledloan participant.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)Each Lender may, except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without with the prior written consent of each Lender Borrower (and any attempted assignment or transfer by such Borrower without such which consent shall not be null unreasonably withheld or delayed and voidwhich consent shall not be required (i) and in connection with an assignment to an Affiliate, (ii) no Lender may assign in connection with any transaction described in Section 13.2(f) hereof, or otherwise transfer its rights or obligations hereunder except in accordance (iii) after the occurrence and during the continuance of an Event of Default) and with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate consent of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) at any legal time assign, transfer or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) sell all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loans, Obligations and/or Collateral) to it) with the prior written consent one or more Persons (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a"Transferee"), (e), (f) or (g) has occurred and is continuing, any other Person; provided, furtherthat such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business DaysLender Addition Agreement, it which shall be deemed in form and substance reasonably acceptable to have consented Agent in its Permitted Discretion. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such assignment;
Lender Addition Agreement, (Bi) the Administrative Agent, provided that no consent of the Administrative Agent Transferee thereunder shall be required for an assignment of a given Class of Loans party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender holding such Class of Loanshereunder, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(Cii) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 13.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled13.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with this Sectionthe provisions of SECTION 13.13(B), (ii) by way of participation in accordance with the provisions of SECTION 13.13(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSECTION 13.13(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may at any time assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Commitment and the Loans outstanding Borrowings at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of); provided that:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s 's Commitment and outstanding Borrowings at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Administrative Agent) Assignment and Assumption, as of the Trade Date, shall not be less than $5.0 million or5,000,000 or a whole multiple of $500,000 in excess thereof, in the case and after such assignment, no Lender shall hold a Commitment of Term Loans, less than $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consent consents (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
; (Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent (which approval shall not be construed to prohibit unreasonably withheld) unless the assignment of Person that is the proposed assignee is itself a proportionate part of all Lender (whether or not the assigning Lender’s rights proposed assignee would otherwise qualify as an Eligible Assignee); and obligations in respect of one Class of Commitments or Loans;
(Civ) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable 3,500. Subject to acceptance and recording thereof by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire pursuant to SECTION 13.13(c), from and after the effective date specified in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower each Assignment and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAssumption, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that a party to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelyAgreement and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Assumption, each Sponsor Affiliated have the rights and obligations of a Lender shall vote in such proceedings in under this Agreement, and the manner as directed by the Majority Lendersassigning Lender thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Assumption, be released from its obligations under this Agreement (and, in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to Assignment and Assumption covering all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated assigning Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders 's rights and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lendersobligations under this Agreement, such Sponsor Affiliated Lender will shall cease to be deemed a party hereto but shall continue to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees benefits of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.CREDIT AGREEMENT
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations Rights hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnified Parties) any legal or equitable right, remedy remedy, or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations Rights under this Agreement (including all or a portion of its Commitments Commitment and Borrowings (including for purposes of this Section 13.11(b) participation in the Loans LC Exposure) at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, ); provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment and Borrowings at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Total Commitment or Loans of the assigning Lender (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to the Administrative Agent) , shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 10,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Default has occurred and is continuing, Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this AgreementAgreement with respect to the Total Commitment and Borrowings assigned, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(Ciii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
3,500, and (Div) the assigneeassignee Lender, if it shall is not be a LenderLender prior to the effectiveness of such assignment, shall deliver an administrative questionnaire to the Administrative Agent. Subject to acceptance and recording thereof by Administrative Agent an Administrative Questionnaire pursuant to Section 13.11(c), from and after the effective date specified in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower each Assignment and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Acceptance Agreement, each Sponsor Affiliated have the Rights of a Lender shall vote in such proceedings in under this Agreement, and the manner as directed by the Majority Lendersassigning Lender thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Acceptance Agreement, be released from its obligations under this Agreement (and, in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an Assignment and Acceptance Agreement covering all of the assigning Lender’s rights under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.18, 3.19, and 7.12). Upon request, Borrowers shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights under this Agreement that does not comply with this Section 13.11(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights in accordance with Section 13.11(d).
(c) Administrative Agent, acting solely for this purpose as an agent of Borrowers, shall maintain at Administrative Agent’s Office a copy of each Assignment and Acceptance Agreement delivered to it and a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated register for the recordation of the names and addresses of Lenders, and the aggregate principal amount of all Loans Commitments of, and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstandingBorrowings and LC Exposure owing to, each Lender pursuant to the terms hereof from time to time (2) no Revolving Credit Loans or Revolving Credit Commitments the “Register”). The entries in the Register shall be assigned conclusive, and Borrowers and the Credit Parties may treat each Person whose name is recorded in the Register pursuant to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated the terms hereof as a Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) hereunder for all purposes of any amendmentthis Agreement, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein notice to the contrary, Holdings The Register shall be available for inspection by Borrowers and any Credit Party, at any reasonable time and from tune to time upon reasonable prior notice.
(d) Any Lender may, without the consent of or notice to, Borrowers or Administrative Agent, sell participation to one (1) or more Eligible Assignees (a “Participant”) in all or a portion of such Lender’s rights under this Agreement (including all or a portion of its Subsidiaries may not be assignees Commitment and/or the Borrowings (including such Lender’s participations in the LC Exposure) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrowers, Administrative Agent, and the other Credit Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification, or waiver of any Loans provision of this Agreement; provided that such agreement or Commitments instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver, or other than Term Loans modification that would (A) postpone any date upon which any payment of money is scheduled to be paid to such Participant, (B) reduce the principal, interest, fees, or other amounts payable to such Participant, or (C) release any guarantor (except as expressly provided in Sections 4.2(g) and 4.6) or all or substantially all of any collateral. Subject to Section 13.11(e), Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.14, 3.18, and 3.19 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 2.08(j) and Term Loans acquired 13.11(b). To the extent permitted by Holdings or its Subsidiaries under such Section law, each Participant also shall be immediately cancelledentitled to the benefits of Section 3.12(a) as though it were a Lender, provided that such Participant agrees to be subject to Section 3.12(b) as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment under Section 3.14, 3.18 or Section 3.19 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant that would be a foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.14 or 3.19 unless Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 3.19(d) as though it were a Lender.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon and shall inure to the benefit of the parties hereto Borrowers and Lenders and their respective successors and assigns permitted hereby assigns.
(including b) The foregoing shall not authorize any Affiliate assignment by any of the Issuing Bank that issues any Letter of Credit)Borrowers, except that (i) no Borrower may assign or otherwise transfer any of its rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of Lenders.
(c) The Borrowers and Agent acknowledge that each of Lenders may at any time and from time to time, subject to the terms and conditions hereof (including Section 13.14 hereof), (i) assign or grant participations in such Lender’s rights and obligations hereunder and under the other Loan Documents to any commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (x) the approval of Company shall not be required upon the occurrence and during the continuance of a Default or Event of Default and (y) the approval of Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (ii) grant to an SPFV the option to fund all or any part of any Advance that the Granting Lender would otherwise be obligated to fund pursuant to this Agreement; provided, however, that (A) nothing herein shall constitute a commitment by any SPFV to fund any Advance, but if an SPFV elects not to fund all or any part of an Advance hereunder, the Granting Lender shall be obligated to fund such Advance pursuant to the terms hereof; (B) the funding of any Advance by an SPFV hereunder shall be credited against the applicable commitment of the Granting Lender to fund such Advance to the same extent as, and as if, such Advance were funded by such Granting Lender and any payments in respect of an Advance (or portion thereof) previously funded by any SPFV shall be paid, for the account of such SPFV, to its Granting Lender, as agent for such SPFV; (C) each SPFV shall have all the rights that a Lender making such Advances or any portion thereof would have had under this Agreement (provided that each SPFV shall have granted to its Granting Lender an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement and the other Loan Documents and to exercise on behalf of such SPFV all such SPFV’s voting rights under this Agreement) and no additional Note or other instrument shall be required to evidence the Advances or portion thereof funded by any SPFV, each related Granting Lender being deemed to hold its Note as agent for such SPFV to the extent of the Advances or portion thereof funded by such SPFV; (D) Company and Agent agree that no SPFV shall be liable for any indemnity or payment under this Agreement for which a Granting Lender would otherwise be liable so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment, as the case may be; and (E) an SPFV may, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Advances to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of SPFV to support the funding or maintenance of Advances (provided that the rights of any such assignee or participant shall be subject to and limited as set forth in this clause (ii) of Section 13.8(c)). Each of the Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Company and Agent and to any assignee under an assignment not required to be approved by Company pursuant to clauses (x) and (y) of the first proviso of this Section 13.8(c) and to an SPFV (and on a confidential basis to any Rating Agency, commercial paper dealer or provider of any surety or guaranty to such SPFV), any and all financial information in such Lender’s possession concerning such Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof. Clause (ii), the definition of “Granting Lender,” and the immediately preceding sentence of this Section 13.8(c) may not be amended without the prior written consent of each Lender Granting Lender, all or any part of whose Advances are being funded by an SPFV at the time of any such amendment; and each party hereto agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any attempted assignment SPFV, it will not, on the basis of any claim or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign matter arising under or in connection with or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in relating to this Agreement, expressed institute against, or impliedjoin any other person in instituting against such SPFV any bankruptcy, shall be construed to confer upon any Person (other than reorganization, arrangement, insolvency or liquidation proceedings under the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate laws of the Issuing Bank that issues United States of America or any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal state or equitable right, remedy or claim under or by reason of this Agreementpolitical subdivision thereof.
(id) Subject to the conditions set forth in clause (b)(ii) below, Each assignment by a Lender of any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and/or obligations hereunder and obligations under this the other Loan Documents, other than assignments to such Lender’s Affiliates or to a Federal Reserve Bank under Section 13.8(c)(ii) hereof, shall be made pursuant to an Assignment Agreement (including all or a portion of its Commitments and the Loans at the time owing to it“Assignment Agreement”) with the prior written consent substantially (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(aas determined by Agent), in the form attached hereto as Exhibit E (e), (fwith appropriate insertions acceptable to Agent) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the terms and conditions hereof, and to the following additional conditionsrestrictions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(Bi) each partial assignment shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, provided that this clause hereunder;
(ii) each assignment shall not be construed to prohibit in a minimum amount of the assignment lesser of a proportionate part (x) Five Million Dollars ($5,000,000) and (y) the entire remaining amount of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted interest in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, Revolving Credit (and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable participations in any material respect to such Sponsor Affiliated Lender than the proposed treatment outstanding Letters of similar Obligations held by Lenders that are not Sponsor Affiliated LendersCredit); provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lenderhowever that, (1) after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000;
(iii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), each of the Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to Agent the original of each Note, if any, issued to such Lender, held by the assigning Lender under this Agreement. From and after the date on which Agent shall notify Company and Lender which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other assignments Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Schedule 1.1 to this Agreement shall be deemed to be amended to reflect the applicable new Percentages of Lenders (including the assignee Lender), taking into account such assignment.
(e) Each Lender agrees that any participation agreement permitted hereunder shall comply with all Sponsor Affiliated Lendersapplicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable participation agreement):
(i) such Lender shall remain the holder of its interest in the Indebtedness hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrowers relating to this Agreement and the other Loan Documents, including, without limitation, the aggregate right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant, except in the case of participations granted to an Affiliate of such Lender and except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and the Borrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder); and
(iv) such Lender shall maintain at its principal office a copy of such participation agreement and a register for the recordation of the names and addresses of the participants, the percentage of the Indebtedness (and related commitments) held by such participants and the principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% each type of Advance to which each such participation agreement relates. Each of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments Borrowers agrees that each participant shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same proportion extent as if the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not Indebtedness were owing directly to it as a Lender under this Agreement, shall be subject to such voting limitations the pro rata recovery provisions of Section 10.3 hereof and will shall be entitled to vote the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between Issuing Lender and the Person purchasing such participation, and the Borrowers, Agent and the other Lenders shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if it was a Lender; andno such participation had been granted.
(Gf) notwithstanding anything herein Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the contrary“Register”) for the recordation of the names and addresses of Lenders, Holdings the Percentages of such Lenders and its Subsidiaries the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrowers, Agent, and Lenders may not treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be assignees available for inspection by the Borrowers or any Lender upon reasonable notice to Agent and a copy of such information shall be provided to any such party on their prior written request. Agent shall give prompt written notice to Company of the making of any Loans entry in the Register or Commitments any change in such entry.
(g) Nothing in this Agreement, or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than Term Loans pursuant to Section 2.08(j) the respective parties hereto and Term Loans acquired by Holdings thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or its Subsidiaries any legal or equitable right, remedy or other claim under such Section shall be immediately cancelledthis Agreement, or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto (including, to the extent set forth herein, the Related Parties of the parties hereto) and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank Banks and the Lenders) , any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Commitment and the Loans at the time owing to itit and its interests in Swingline Loans and Letters of Credit) with the prior written consent (such consent not to be unreasonably withheld or delayedwithheld) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Personassignee; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;and
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to an assignee that is a Lender holding with a commitment immediately prior to giving effect to such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fundassignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class's Commitment, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed)consent, provided that no such consent of the Parent Borrower shall be required if an Event of Default under clauses (a), (b), (g) or (h) of Article 6 has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledQuestionnaire.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Lennox International Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Each Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loans) to it) with the prior written consent one or more Persons (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a"Transferee"), (e), (f) or (g) has occurred and is continuing, any other Person; provided, furtherthat such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, that if a Lender Addition Agreement. Upon such execution, delivery, acceptance and recording, from and after the Parent Borrower shall not respond effective date determined pursuant to a request for a consent to an assignment within 10 Business Dayssuch Lender Addition Agreement, it (i) the Transferee thereunder shall be deemed a party hereto and, to the extent provided in such Lender Addition Agreement, have consented to such assignment;
the same rights, benefits and obligations as it would if it were a Lender hereunder, (Bii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Covista Communications Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower the Borrowers may not assign or otherwise transfer any of its their rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such any Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreementto an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), expressed which consent shall not be required (A) during the existence of a Default or impliedEvent of Default, shall be construed to confer upon or (B) during the existence of a default under any Person material Contractual Obligation of any Borrower; provided, further, that, (other than the parties hereto, their respective successors and assigns permitted hereby (including any to a Lender or an Affiliate of the Issuing Bank that issues any Letter of Credita Lender), Participants the amount of Loans of the assigning Lender subject to each assignment (aggregating any such assignments by Affiliates) shall not be less than $15,000,000, unless the Borrowers and the Agent otherwise agree. Subject to acceptance and recording thereof pursuant to this Section 9.6, from and after the extent provided effective date specified in clause (c) of this Section) each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning ▇▇▇▇▇▇ and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section 9.6, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrowers or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement. Any agreement 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 Loan Documents (the “Participant Register”); provided that this clause no Lender shall not be construed have any obligation to prohibit disclose all or any portion of the assignment Participant Register (including the identity of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments any participant or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level any information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment relating to a Sponsor Affiliated Lenderparticipant’s interest in any commitments, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code andloans, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any its other Loan Party obligations under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that Loan Document) to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, Person except to the extent that such disclosure is necessary to establish that such commitment, loan, 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 plan notice to the contrary. For the avoidance of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lendersdoubt, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender Agent (in its capacity as Agent) shall have no responsibility for maintaining a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledParticipant Register.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may may, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Notes -- to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Note or delayed) ofNotes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, another Lender or an Affiliate of a Lender Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of Loan Documents, any such partial assignment under the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Revolver Facility shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 5,000,000 (unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing;, ACS consents thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement), provided that, no partial assignment (including any assignment among Lenders) may result in any Lender holding less than $5,000,000.
(Biii) each partial such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this Agreement, provided that this clause shall not be construed Agreement and the Notes (to prohibit the assignment of extent any Principal Debt owed to such assigning Lender is evidenced by a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments Note or LoansNotes);
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT E hereto ("ASSIGNMENT AND ACCEPTANCE"), together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500 (which fee shall be payable by the Assignee parties to such Assignment and Acceptance and is not part of the Obligation), including, without limitation, any assignment between Lenders; and 60 ACS CREDIT AGREEMENT
(v) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with SECTION 12.1 (with respect to Administrative Agent) or SECTION 12.10 (with respect to the Assignee’s compliance procedures other Agents). Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrowers shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrowers and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 13.3 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 Lenders and the Commitment Percentage of, Committed Sum of, and Principal Debt owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrowers, Administrative Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrowers, or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 13.12, SCHEDULE 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sum of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrowers and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding taxes or 61 ACS CREDIT AGREEMENT any filing or reporting requirements relating to such participation and shall hold Borrowers and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrowers shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments, if any), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan Documents (except such releases of Guaranties or Collateral as are contemplated in SECTION 6.2 or otherwise permitted by the Loan Documents); provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (Eor Participant) shall not apply to Affiliated Debt Funds,
(F) control the vote for all of such Lender's portion of the Obligation. Except in the case of an assignment the sale of a participating interest to a Sponsor Affiliated another Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders relevant participation agreement shall not exceed 20% permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the aggregate unpaid principal amount Obligation, unless the consent of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated transferring Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and which consent will not be permitted to attend unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes the consent of any amendmentBorrower or Administrative Agent, waiver at any time assign and pledge all or modification any portion of its Borrowings and its Notes (to the extent any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Principal Debt Fund will not be subject owed to such voting limitations assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and will be entitled to vote as if it was any Operating Circular issued by such Federal Reserve Bank or any Lender which is a Lender; and
fund may pledge all or any portion of its Borrowings and its Notes (G) notwithstanding anything herein to the contrary, Holdings and extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its Subsidiaries may not be assignees trustee in support of any Loans or Commitments other than Term Loans pursuant its obligations to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under trustee. No such Section assignment shall be immediately cancelledrelease the assigning Lender from its obligations hereunder.
Appears in 1 contract
Sources: Revolving Credit Agreement (Affiliated Computer Services Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions Subject to Section 12.2(b) hereof, each Lender Party may assign all or any portion of this Agreement its rights and delegate all or any portion of its obligations under any Loan Document to one or more Eligible Assignees in accordance with the terms hereof (each, a “Transferee”) with the prior written consent of Agent and, so long as no Event of Default exists, Borrowers (which consent of Borrowers shall not be binding upon unreasonably withheld, delayed or conditioned); provided that at any time that an Event of Default exists, such assignments shall not be restricted to Eligible Assignees. Each Lender Party may furnish any information concerning the Credit Parties in the possession of that Lender Party from time to time to assignees and inure participants (including prospective assignees and participants), subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that confidentiality provisions hereunder.
(i) Any Transfer hereunder shall be effective only upon satisfaction of the following conditions: (A) execution and delivery by the Transferee, the assigning Lender and Agent of an original Lender Addition Agreement and any documents required thereunder, (B) Agent shall have accepted such Lender Addition Agreement and recorded in the Register the names and addresses, Commitment, principal amount of the Loans owing, and Notes, if any, evidencing such transfer, and (C) receipt by Agent from such Transferee of a processing fee in the amount of $3,500. The parties hereto hereby agree that upon the effectiveness of each such Transfer, the Transferee shall become a Lender Party hereunder and the assigning Lender shall be relieved of its obligations hereunder in accordance with such Lender Addition Agreement. Within a reasonable amount of time after the effectiveness of any Transfer, the assigning Lender shall surrender any outstanding applicable Notes held by it, and Borrowers, at their own expense, shall promptly (and in any event within five (5) Business Days thereof) execute and deliver to Agent, new Notes to reflect the interest held by the assigning Lender and its Transferee. Agent shall maintain a copy of each Lender Addition Agreement delivered to it and the Register, which shall be available for inspection by any party hereto at any reasonable time upon reasonable prior notice to Agent.
(ii) Notwithstanding anything in the Loan Documents, (X) no Borrower may CapitalSource Entity shall be required to comply with Section 12.2(b)(i) in connection with any transaction involving any other CapitalSource Entity or any of its or their lenders or funding or financing sources, and none of the foregoing shall be considered a Transferee, and (Y) there shall be no limitation or restriction on (I) the ability of any CapitalSource Entity to assign or otherwise transfer any of its rights Loan Document, Commitment or obligations hereunder without the prior written consent of each Lender Obligation to any other CapitalSource Entity or any lender or financing or funding source or (and II) any attempted assignment such lender’s or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may funding or financing source’s ability to assign or otherwise transfer its rights any Loan Document, Commitment or obligations hereunder except in accordance Obligation; provided, however, that CapitalSource shall continue to be liable as a “Lender” under the Loan Documents unless such other Person complies with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors provisions of Section 12.2(b)(i) and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause thereby becomes a “Lender.”
(c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth Each Lender Party may sell participations in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion any part of its rights and obligations under this Agreement the Loan Documents to one or more Persons (including each, a “Participant”). Upon any such sale, (i) such Lender’s obligations under each Loan Document shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan and all or a portion of its Commitments parties hereto shall continue to deal solely and the Loans at the time owing to it) directly with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment Loan Documents. Any agreement pursuant to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, which any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or sell any portion of a Term Loan or for an assignment such participation shall provide that such Lender shall retain the sole right and responsibility to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each exercise such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and enforce each Credit Party’s obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable lawshereunder, including Federal and state securities laws;
(E) in case the right to consent to any amendment, supplement, modification or waiver of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall any provision of any Loan Document. The Credit Parties hereby acknowledge and agree that they are the Participant under each participation shall, solely for the purposes of Sections 10.3, 11.3, 12.4 and 12.7 hereof, be considered to be a “insidersLender” under Section 101(31hereunder.
(d) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or Notwithstanding any other provision set forth in any Loan Document, any Lender Party may at any time create a security interest in any portion of its rights under any applicable Debtor Relief LawsLoan Document. Each Credit Party agrees to use commercially reasonable efforts to assist any Lender Party in making assignments or selling participations in any part of any Loan.
(e) The Loan Documents shall (i) inure to the benefit of each Lender Party, and such Sponsor Affiliated Lender shall further acknowledge and agree that Transferee, Participant (only to the extent it votes in contravention expressly provided herein) and all future holders of the terms Loans, Obligations and/or any Collateral, and each of this Section 12.06their respective permitted successors and assigns, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (eii) be binding upon all the Credit Parties. No Credit Party may sell, assign or transfer any of Section 1126 of the Bankruptcy Code , or, alternatively, its interests or Obligations under any Loan Document. No rights are intended to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of created under any Loan Document that does not for the benefit of any third party donee, creditor or incidental beneficiary of any Credit Party. Nothing contained in each case adversely affect such Sponsor Affiliated Lender (in its capacity any Loan Document shall be construed as a Lender) in delegation to any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees Party of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledPerson’s duty of performance.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with this Sectionthe provisions of SECTION 13.13(b), (ii) by way of participation in accordance with the provisions of SECTION 13.13(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSECTION 13.13(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may at any time assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Commitment and the Loans outstanding Borrowings (including for purposes of this SECTION 13.13(b) participations in L/C Obligations) at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of); provided that:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s 's Commitment and outstanding Borrowings and participations in Unreimbursed Amounts at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender (which for this purpose includes Borrowings and participations in Unreimbursed Amounts outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Administrative Agent) Assignment and Assumption, as of the Trade Date, shall not be less than $5.0 million or5,000,000 or a whole multiple of $500,000 in excess thereof, in the case and after such assignment, no Lender shall hold a Commitment of Term Loans, less than $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consent consents (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
; (Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment or unfunded participation in Unreimbursed Amounts must be approved by Administrative Agent (which approval shall not be construed to prohibit unreasonably withheld) unless the assignment of Person that is the proposed assignee is itself a proportionate part of all Lender (whether or not the assigning Lender’s rights proposed assignee would otherwise qualify as an Eligible Assignee); and obligations in respect of one Class of Commitments or Loans;
(Civ) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable 3,500. Subject to acceptance and recording thereof by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire pursuant to SECTION 13.13(c), from and after the effective date specified in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower each Assignment and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAssumption, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding Eligible Assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that a party to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelyAgreement and, to the extent that of the foregoing non-voting designation is deemed unenforceable for any reasoninterest assigned by such Assignment and Assumption, each Sponsor Affiliated have the rights and obligations of a Lender shall vote in such proceedings in under this Agreement, and the manner as directed by the Majority Lendersassigning Lender thereunder shall, except to the extent that any plan of reorganization proposes to treat the Obligations held interest assigned by such Sponsor Affiliated Lender Assignment and Assumption, be released from its obligations under this Agreement (and, in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to Assignment and Assumption covering all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated assigning Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders 's rights and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lendersobligations under this Agreement, such Sponsor Affiliated Lender will shall cease to be deemed a party hereto but shall continue to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
the benefits of SECTIONS 4.1, 4.5, and 4.6 (G) notwithstanding anything herein with respect to facts and circumstances occurring prior to the contrary, Holdings and its Subsidiaries may not be assignees effective date of any Loans or Commitments other than Term Loans pursuant to Section 2.08(jsuch assignment) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled11.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Centex Development Co Lp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except in accordance with to an assignee (“Assignee”). Subject to acceptance and recording thereof pursuant to this Section. Nothing , from and after the effective date specified in this Agreement, expressed or implied, each Assignment and Assumption the Assignee thereunder shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrower or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided . Any agreement pursuant to which a Lender sells such a participation shall provide that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge retain the sole right to enforce this Agreement and agree that they are each “insiders” under Section 101(31) to approve any amendment, modification or waiver of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms provision of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated LendersAgreement; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lendersuch agreement may provide that such Lender will not, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, without the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% consent of the aggregate unpaid principal amount of the Term Loans then outstandingloan participant, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned agree to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, modification or waiver or modification that (x) requires the consent of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans directly affected thereby pursuant to Section 2.08(j9.1 and (y) and Term Loans acquired by Holdings or its Subsidiaries under directly affects such Section shall be immediately cancelledloan participant.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Notes to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Note or delayed) ofNotes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of Loan Documents, any such partial assignment under the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Facility shall not be less than $5.0 million or, 5,000,000 unless Borrower and Administrative Agent consent thereto (in the case of Term Loans, $1.0 million unless each their sole discretion) in writing which may be evidenced by their acceptance and execution of the Parent Borrower related Assignment and Acceptance Agreement; provided that, no partial assignment for the Administrative Agent otherwise consent Facility (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuingincluding any assignment among Lenders) may result in any Lender holding less than $10,000,000;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(Ciii) the parties to each such assignment (including, without limitation, any assignment between Lenders) shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in substantially the form of Exhibit E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;1,000; and
(Div) so long as any Lender is Administrative Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the assigneeLoan Documents, if it shall will not be a assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, shall deliver and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations as a Lender under the Loan Documents to the any Person other than an Affiliate of such Lender unless Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with the Assignee’s compliance procedures Section 13.1. Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting andassignee thereunder, under sections 1126 and 1129 of the Bankruptcy Codeif not already a party hereto, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelybecome a party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents; provided, however, the assigning Lender shall retain any indemnity rights hereunder for the period prior to such assignment. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6.
(c) Administrative Agent shall maintain at its address referred to in Section 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this Section 14.13, Schedule 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit E hereto, promptly (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of Article 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under Article 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of Article 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a manner that is less favorable participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any material respect Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such Sponsor Affiliated assigning Lender than is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the proposed treatment extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) its obligations to its trustee. No such assignment shall not apply to Affiliated Debt Funds,release the assigning Lender from its obligations hereunder.
(Fg) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, Any Lender may furnish any information concerning the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted Parties in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on possession of such matter; provided that an Affiliated Debt Fund will not be Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees provisions of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled14.14.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon and shall inure to the benefit of the parties hereto Borrowers and Lenders and their respective successors and assigns permitted hereby assigns.
(including b) The foregoing shall not authorize any Affiliate assignment by any of the Issuing Bank that issues any Letter of Credit)Borrowers, except that (i) no Borrower may assign or otherwise transfer any of its rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of Lenders.
(c) The Borrowers and Agent acknowledge that each of Lenders may at any time and from time to time, subject to the terms and conditions hereof (including Section 13.14 hereof), (i) assign or grant participations in such Lender’s rights and obligations hereunder and under the other Loan Documents to any commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (x) the approval of Company shall not be required upon the occurrence and during the continuance of a Default or Event of Default and (y) the approval of Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (ii) grant to an SPFV the option to fund all or any part of any Advance that the Granting Lender would otherwise be obligated to fund pursuant to this Agreement; provided, however, that (A) nothing herein shall constitute a commitment by any SPFV to fund any Advance, but if an SPFV elects not to fund all or any part of an Advance hereunder, the Granting Lender shall be obligated to fund such Advance pursuant to the terms hereof; (B) the funding of any Advance by an SPFV hereunder shall be credited against the applicable commitment of the Granting Lender to fund such Advance to the same extent as, and as if, such Advance were funded by such Granting Lender and any payments in respect of an Advance (or portion thereof) previously funded by any SPFV shall be paid, for the account of such SPFV, to its Granting Lender, as agent for such SPFV; (C) each SPFV shall have all the rights that a Lender making such Advances or any portion thereof would have had under this Agreement (provided that each SPFV shall have granted to its Granting Lender an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement and the other Loan Documents and to exercise on behalf of such SPFV all such SPFV’s voting rights under this Agreement) and no additional Note or other instrument shall be required to evidence the Advances or portion thereof funded by any SPFV, each related Granting Lender being deemed to hold its Note as agent for such SPFV to the extent of the Advances or portion thereof funded by such SPFV; (D) Company and Agent agree that no SPFV shall be liable for any indemnity or payment under this Agreement for which a Granting Lender would otherwise be liable so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment, as the case may be; and (E) an SPFV may, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Advances to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of SPFV to support the funding or maintenance of Advances (provided that the rights of any such assignee or participant shall be subject to and limited as set forth in this clause (ii) of Section 13.8(c)). Each of the Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Company and Agent and to any assignee under an assignment not required to be approved by Company pursuant to clauses (x) and (y) of the first proviso of this Section 13.8(c) and to an SPFV (and on a confidential basis to any Rating Agency, commercial paper dealer or provider of any surety or guaranty to such SPFV), any and all financial information in such Lender’s possession concerning such Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof. Clause (ii), the definition of “Granting Lender,” and the immediately preceding sentence of this Section 13.8(c) may not be amended without the prior written consent of each Lender Granting Lender, all or any part of whose Advances are being funded by an SPFV at the time of any such amendment; and each party hereto agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any attempted assignment SPFV, it will not, on the basis of any claim or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign matter arising under or in connection with or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in relating to this Agreement, expressed institute against, or impliedjoin any other person in instituting against such SPFV any bankruptcy, shall be construed to confer upon any Person (other than reorganization, arrangement, insolvency or liquidation proceedings under the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate laws of the Issuing Bank that issues United States of America or any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal state or equitable right, remedy or claim under or by reason of this Agreementpolitical subdivision thereof.
(id) Subject to the conditions set forth in clause (b)(ii) below, Each assignment by a Lender of any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and/or obligations hereunder and obligations under this the other Loan Documents, other than assignments to such Lender’s Affiliates or to a Federal Reserve Bank under Section 13.8(c)(ii) hereof, shall be made pursuant to an Assignment Agreement (including all or a portion of its Commitments and the Loans at the time owing to it“Assignment Agreement”) with the prior written consent substantially (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(aas determined by Agent), in the form attached hereto as Exhibit E (e), (fwith appropriate insertions acceptable to Agent) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the terms and conditions hereof, and to the following additional conditionsrestrictions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(Bi) each partial assignment shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights and obligations under this Agreement, provided that this clause hereunder;
(ii) each assignment shall not be construed to prohibit in a minimum amount of the assignment lesser of a proportionate part (x) Five Million Dollars ($5,000,000) and (y) the entire remaining amount of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted interest in the event that Revolving Credit (and participations in any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention outstanding Letters of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (cCredit) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated LendersTerm Loan; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lenderhowever that, (1) after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000;
(iii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), each of the Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to Agent the original of each Note, if any, issued to such Lender, held by the assigning Lender under this Agreement. From and after the date on which Agent shall notify Company and Lender which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other assignments Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Schedule 1.1 to this Agreement shall be deemed to be amended to reflect the applicable new Percentages of Lenders (including the assignee Lender), taking into account such assignment.
(e) Each Lender agrees that any participation agreement permitted hereunder shall comply with all Sponsor Affiliated Lendersapplicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable participation agreement):
(i) such Lender shall remain the holder of its interest in the Indebtedness hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrowers relating to this Agreement and the other Loan Documents, including, without limitation, the aggregate right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant, except in the case of participations granted to an Affiliate of such Lender and except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and the Borrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder); and
(iv) such Lender shall maintain at its principal office a copy of such participation agreement and a register for the recordation of the names and addresses of the participants, the Percentages of the Indebtedness (and related commitments) held by such participants and the principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% each type of Advance to which each such participation agreement relates. Each of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments Borrowers agrees that each participant shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same proportion extent as if the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not Indebtedness were owing directly to it as a Lender under this Agreement, shall be subject to such voting limitations the pro rata recovery provisions of Section 10.3 hereof and will shall be entitled to vote the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between Issuing Lender and the Person purchasing such participation, and the Borrowers, Agent and the other Lenders shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if it was a Lender; andno such participation had been granted.
(Gf) notwithstanding anything herein Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the contrary“Register”) for the recordation of the names and addresses of Lenders, Holdings the Percentages of such Lenders and its Subsidiaries the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrowers, Agent, and Lenders may not treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be assignees available for inspection by the Borrowers or any Lender upon reasonable notice to Agent and a copy of such information shall be provided to any such party on their prior written request. Agent shall give prompt written notice to Company of the making of any Loans entry in the Register or Commitments any change in such entry.
(g) Nothing in this Agreement, or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than Term Loans pursuant to Section 2.08(j) the respective parties hereto and Term Loans acquired by Holdings thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or its Subsidiaries any legal or equitable right, remedy or other claim under such Section shall be immediately cancelledthis Agreement, or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of . For the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms purposes of this Section 12.06, it shall consent and not otherwise object to being designated as having voted the term “not in good faithApproved Fund” under subsections (c) and (e) of Section 1126 of has the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.following meaning:
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Facility A Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Papers without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Facility A Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Facility A Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Facility A Agreement and the other Facility A Loan Papers (including including, without limitation, all or a portion of its Commitments and Borrowings, its Notes [to the Loans at the time owing extent such Facility A Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofFacility A Lender is evidenced by Notes]); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a another Facility A Lender or an assignment of the entire remaining amount all of the assigning a Facility A Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment 's Rights and obligations under this Facility A Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (other Facility A Loan Papers, any such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as in an amount at least equal to $10,000,000;
(iii) each such assignment by a Facility A Lender shall be of a proportionate part constant, and not varying, percentage of all the assigning Lender’s rights of its Rights and obligations under this Agreement, provided that this clause shall not be construed Facility A Agreement and the Notes (to prohibit the assignment of a proportionate part of all extent the Facility A Principal Debt owed to the assigning Lender’s rights and obligations in respect of one Class of Commitments or LoansFacility A Lender is evidenced by any Notes);
(Civ) each such assignment shall exclude Competitive Borrowings, unless the assigning Facility A Lender is selling all of its Rights and obligations under the Facility A Loan Papers; and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent the Facility A Principal Debt owed to the assigning Facility A Lender is evidenced by any Notes) and a processing and recordation fee of $3,500 payable by the Assignee unless 3,500. Upon execution, delivery, and acceptance of such parties otherwise agree;
(D) the assigneeAssignment and Acceptance Agreement, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Facility A Lender under the Facility A Loan Papers and the assigning Facility A Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under the Facility A Loan Papers. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 10.9.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Facility A Lenders and the Facility A Commitment, and principal amount of the Borrowings owing to, each Facility A Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Facility A Lenders may treat each Person whose name is recorded in the Register as a Facility A Lender hereunder for all purposes of the Facility A Loan Papers. The Register shall be available for inspection by Borrower or any Facility A Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 11.14, SCHEDULE 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Facility A Committed Sums of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment (to the extent the Facility A Principal Debt owed to the assigning Facility A Lender is evidenced by any Notes) and payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this section and in accordance with applicable Law, any Facility A Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation under Facility A. In the event of any such sale to a Participant, (i) such Facility A Lender shall remain a "Facility A Lender" under this Facility A Agreement and the Participant shall not constitute a "Facility A Lender" hereunder, (ii) such Facility A Lender's obligations under this Facility A Agreement shall remain unchanged, (iii) such Facility A Lender shall remain solely responsible for the performance thereof, (iv) such Facility A Lender shall remain the holder of its share of the Facility A Principal Debt for all purposes under this Facility A Agreement, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Facility A Lender in connection with such Facility A Lender's Rights and obligations under the Facility A Loan Papers, and (vi) such Facility A Lender shall be solely responsible for any reasonwithholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Facility A Loan Papers, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Facility A Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of SECTION 3 with respect to all participations in its part of the Obligation under Facility A outstanding from time to time so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Facility A Lender under SECTION 3 calculated as though no participations have been made. No Facility A Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Facility A Loan Paper, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments), interest, or fees due under the Facility A Loan Papers, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations held Obligation under Facility A (except such reductions as are contemplated by this Facility A Agreement), or releases any guaranty or collateral, if any, for the Obligation under Facility A (except such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held releases as are contemplated by Lenders that are not Sponsor Affiliated Lendersthis Facility A Agreement); provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to those cases where a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be Participant is entitled to vote as if it was the benefits of SECTION 3 or a Lender; and
(G) notwithstanding anything herein Facility A Lender grants Rights to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.Participants
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Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(d) and (ii) no h), a Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loan) to itone or more Persons (a “Transferee”) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrowerof Agent, provided provided, however, that so long as no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a)exists, Borrower’s consent (e), (fwhich consent may be withheld in Borrower’s sole discretion) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an any assignment of a given Class of Loans pursuant to this Section 12(a) to a Person that is a Direct Competitor. Except as set forth in the immediately preceding sentence, there shall be no limitation or restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee and such Lender holding such Class of Loansshall execute and deliver for acceptance and recording in the Register, an Affiliate of such a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”) together with a processing and recordation fee of $5,000 for the account of Agent (unless such fee is waived by Agent in its sole discretion), such fee to be paid by either the Transferee or an Approved Fund of such a Lender or shared between Transferee and such Lender; and
. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (Ci) the Issuing Bank Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Advances or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lenderparty hereto but, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to matters occurring before such assignment, shall nevertheless continue to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Loan and Security Agreement (CURO Group Holdings Corp.)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure Subject to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and voidSections 12.2(f) and (ii) no h), a Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance at any time, with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate consent of the Issuing Bank that issues any Letter of CreditAgent and such Lender’s Managing Agent (such consent not to be unreasonably withheld), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million orand/or, in the case of Term Loansany Bank Branch, $1.0 million unless each of the Parent Borrower its Revolving Loan Amount under this Agreement and the Administrative Agent otherwise consent other Loan Documents (such consent not including all its rights and obligations with respect to be unreasonably withheld the Loan) to one or delayedmore Persons (a “Transferee”). Notwithstanding anything to the contrary in this Agreement, provided that no such consent of the Parent Borrower there shall be required if an Event of Default has occurred no limitation or restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee and is continuing;
(B) each partial assignment such Lender shall execute and deliver for acceptance and recording in the Lender Register, a Lender Addition Agreement, which shall be made in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as an assignment it would if it were a Lender hereunder, (ii) the assigning Lender shall be relieved of its obligations hereunder with respect to its Loans or assigned portion thereof, as the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a proportionate part Lender Addition Agreement covering all or the remaining portion of all the an assigning Lender’s rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lenderparty hereto but, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to matters occurring before such assignment, shall nevertheless continue to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 12.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with this Sectionthe provisions of SECTION 13.13(b), (ii) by way of participation in accordance with the provisions of SECTION 13.13(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSECTION 13.13(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the LendersIndemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may at any time assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments Commitment and the Loans outstanding Borrowings at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of); provided that:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s 's Commitment and outstanding Borrowings at the time owing to it or Loans in the case of any Classan assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment (assignment, determined as of the date the Assignment Agreement and Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Administrative Agent) Assignment and Assumption, as of the Trade Date, shall not be less than $5.0 million or5,000,000 or a whole multiple of $500,000 in excess thereof, in the case and after such assignment, no Lender shall hold a Commitment of Term Loans, less than $1.0 million 5,000,000 unless each of the Parent Borrower and the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consent consents (each such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
; (Bii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent (which approval shall not be construed to prohibit unreasonably withheld) unless the assignment of Person that is the proposed assignee is itself a proportionate part of all Lender (whether or not the assigning Lender’s rights proposed assignee would otherwise qualify as an Eligible Assignee); and obligations in respect of one Class of Commitments or Loans;
(Civ) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreementand Assumption, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled.CREDIT AGREEMENT
Appears in 1 contract
Sources: Credit Agreement (Centex Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that EXCEPT THAT (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) EXCEPT as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Notes -- to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Note or delayed) ofNotes); PROVIDED, HOWEVER, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a another Lender, an Affiliate of a Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of the assigning Lender’s Commitment Loan Documents, any such partial assignment under any Facility or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Discretionary Loan shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million following amounts for the Facility or Discretionary Loan indicated (unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement): =============================================================================== FACILITY/ DISCRETIONARY LOAN MINIMUM ASSIGNMENT =============================================================================== Revolver Facility $2,500,000 (inclusive of any concurrent assignments under the Term Loan A Facility, the Term Loan B Facility, any Discretionary Revolver Loans, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ------------------------------------------------------------------------------- Discretionary Revolver Loans $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan A Facility, the Term Loan B Facility, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Term Loan A Facility $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan B Facility, any Discretionary Revolver Loans, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Discretionary Term A Loans $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan A Facility, the Term Loan B Facility, any Discretionary Revolver Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Term Loan B Facility $1,000,000 ----------------------------- ------------------------------------------------ Discretionary Term B Loans $1,000,000 ============================= ================================================ ; PROVIDED THAT, no partial assignment for any Facility or Discretionary Loan (including any assignment among Lenders) may result in any Lender holding less than $500,000 in any Facility or Discretionary Loan;
(Biii) each partial such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this AgreementAgreement and the Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes), provided except that this clause CLAUSE (iii) shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;of
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement substantially in the form of EXHIBIT F hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500 payable by 3,500, including, without limitation, any assignment between Lenders; and
(v) so long as any Lender is an Agent (OTHER THAN a Co-Agent or a Managing Agent) under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Assignee Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with SECTION 12.1 (with respect to Administrative Agent) or SECTION 12.10 (with respect to the Assignee’s compliance procedures other Agents). Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance Agreement, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 13.13, SCHEDULE 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Facilities and Discretionary Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (OTHER THAN Borrower or any Affiliate of Borrower) (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "LENDER" under the Loan Documents and the Participant shall not constitute a "LENDER" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, SO LONG AS Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (OTHER THAN mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (EXCEPT such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan Documents (EXCEPT such releases of Guaranties or Collateral as are contemplated in SECTION 6.5); PROVIDED THAT, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a manner that is less favorable participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any material respect Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such Sponsor Affiliated assigning Lender than is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to REGULATION A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the proposed treatment extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any trustee or to any other representative of similar Obligations held holders of obligations owed or securities issued by Lenders that are not Sponsor Affiliated Lenderssuch fund as security for such obligations or securities; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned any transfer to any Sponsor Affiliated Lender, (3) no proceeds Person upon the enforcement of Revolving Credit Loans shall such pledge or security interest may only be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be made subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledthis SECTION 13.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Each Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loans) to it) with the prior written consent one or more Persons (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a"TRANSFEREE"), (e), (f) or (g) has occurred and is continuing, any other Person; provided, furtherthat such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, that if a Lender Addition Agreement, substantially in the Parent Borrower shall not respond form of Exhibit C. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to a request for a consent to an assignment within 10 Business Dayssuch Lender Addition Agreement, it (i) the Transferee thereunder shall be deemed a party hereto and, to the extent provided in such Lender Addition Agreement, have consented to such assignment;
the same rights, benefits and obligations as it would if it were a Lender hereunder, (Bii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees benefits of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled12.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Texas San Macros Treatment Center Lp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no A Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loan) to itone or more Persons (a “Transferee”) with without limitation or restriction. The Transferee and such Lender shall execute and deliver for acceptance and recording in the prior written consent Register a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”). Upon such consent not execution, delivery, acceptance and recording, from and after the effective date determined pursuant to be unreasonably withheld or delayed) of:
such Lender Addition Agreement, (Ai) the Parent Borrower, provided that no consent of the Parent Borrower Transferee thereunder shall be required a party hereto and, to the extent provided in connection with such Lender Addition Agreement, have the primary syndication of Term Commitments and/or Term Loans or for an assignment to same rights, benefits and obligations as it would if it were a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a)Lender hereunder, (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(Bii) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline assigning Lender shall be required for an assignment relieved of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement its obligations hereunder with respect to such assignment is delivered its Commitment or assigned portion thereof, as the case may be, to the Administrative Agent) extent that such obligations shall not be less than $5.0 million orhave been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of Term Loans, $1.0 million unless each a Lender Addition Agreement covering all or the remaining portion of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment, shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7 hereof). Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this clause shall not be construed Agreement, any of the other Loan Documents or any of the Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies, powers and duties hereunder or thereunder.
(b) Agent and each Lender may at any time sell participations in all or any part of its rights and obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to prohibit the assignment Loan) to one or more Persons (each, a “Participant”). In the event of any such sale by a Lender of a proportionate part participation to a Participant, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the assigning other Loan Documents, (iv) Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (v) such Participant shall be entitled to the benefits of amounts payable pursuant to Section 2.10 hereof to the same extent as if it were a Lender and acquired its interest by assignment; provided, however, that, a Participant shall not be entitled to receive any greater payment under Section 2.10 hereof than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. Any agreement pursuant to which a Lender shall sell any such participation shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without the consent of the Participant, to any amendment, supplement, modification or waiver of: (A) any reduction in the principal amount, interest rate or fees payable with respect to any Loan in which such holder participates; (B) any extension of the termination date of this Agreement or the date fixed for any payment of principal, interest or fees payable with respect to any Loan in which such holder participates; and (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement or the other Loan Documents). Borrower hereby acknowledges and agrees that the Participant under each participation shall, solely for the purposes of Sections 12.4 and 12.7 hereof, be considered to be a “Lender” hereunder.
(c) Agent shall maintain at its address referred to in Section 12.5 hereof a copy of each Lender Addition Agreement delivered to it and a written or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the portion of the Loan owing to, and the Notes evidencing the Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement to the contrary, each of Borrower and Agent shall treat each Person whose name is recorded in the Register as the owner of its relevant portion of the Loan, the Notes and the Commitment recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything in this Agreement to the contrary, no assignment under Section 12.2(a) hereof of any rights or obligations under or in respect of one Class the Loan or the Notes evidencing any portion of Commitments the Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to Section 12.2(c) hereof. Upon its receipt of a Lender Addition Agreement executed by an assigning Agent and a Transferee, Agent shall (i) promptly accept Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the assigning Lender and Borrower. On or Loans;
(C) prior to such effective date, the parties to each assignment assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are being assigned, and Borrower, at their own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable, execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable interest held by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower assigning Lender and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;Transferee.
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) Except as otherwise provided in this Section 12.2, Agent and each Lender shall not, as between Borrower and Agent, be relieved of Section 1126 any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of a Loan or other Obligations owed to Agent and the Lenders. Agent may furnish any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective assignees and participants), subject to confidentiality requirements hereunder.
(f) Agent and each Lender may at any time create a security interest in all or any portion of its rights under this Agreement, including, without limitation, the Loan (or the portion thereof) owing to it and the Notes held by it and the other Loan Documents and Collateral.
(g) Borrower agrees to use commercially reasonable best efforts to assist Agent and each Lender in assigning or selling participations in all or any part of the Bankruptcy Code , or, alternatively, Loan made by any Lender to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in another Person identified by such proceedings Lender.
(h) Notwithstanding anything in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein Documents to the contrary, Holdings (i) Agent and its Subsidiaries may Affiliates shall not be assignees required to execute and deliver a Lender Addition Agreement in connection with any transaction involving its Affiliates or Lenders, (ii) no lender to or funding or financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s ability to assign or otherwise transfer any Loan Document to any such Affiliate or lender to or funding or financing source of Agent or its Affiliates, and (iv) there shall be no limitation or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign or otherwise transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein); provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.”
(i) The Loan Documents shall inure to the benefit of Agent, the Lenders, Transferee, Participant (to the extent expressly provided therein only) and all future holders of the Notes, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each Loan Document shall be binding upon the Persons that are parties thereto and their respective successors and assigns, and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior written consent of Agent. No rights are intended to be created under any Loan Document for the benefit of any Loans third party donee, creditor or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section incidental beneficiary of Borrower. Nothing contained in any Loan Document shall be immediately cancelledconstrued as a delegation to Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, THE NOTE, THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights and benefits with respect to the Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant any sum in excess of the sum that it would have been obligated to pay to Agent had such transfer or participation not been effected. Agent may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions contained herein that are applicable to Agent.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no Borrower may not, assign or otherwise transfer any of its rights Rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this SectionLender. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, Participants (to the extent provided in clause (c) of this SectionSECTION 13.12(d) and, to the extent expressly contemplated hereby, the Related Parties Affiliates of each of the Administrative Agent, the Issuing Bank Agent and the Lenders) any legal or equitable rightRight, remedy remedy, or claim under or by reason of this Agreement.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Any Lender may at any time assign to one or more assignees (each, an “Assignee”) Persons all or a portion of its rights Rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time Term Loan Principal Debt owing to it) with the prior written consent (such consent not ). The parties to be unreasonably withheld or delayed) of:each assignment by a Lender shall execute and deliver to Administrative Agent an Assignment and Assumption.
(Ac) Any Lender may at any time, without the Parent consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural person or Borrower or any of Borrowers' Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a portion of such Lender's Rights and/or obligations under this Agreement (including all or a portion of the Term Loan Principal Debt owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrower, Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection TERM LOAN AND SECURITY AGREEMENT with such Lender's Rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole Right to enforce this Agreement and to approve any amendment, modification, or waiver of any provision of this Agreement; provided that no such agreement or instrument may provide that such Lender will not, without the consent of the Parent Participant, agree to any amendment, modification, or waiver with respect to the following: extending the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reducing the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releasing all or any substantial portion of the Collateral for the Obligation under the Loan that affects such Participant. Borrower agrees that each Participant shall be required in connection with entitled to the primary syndication benefits of Term Commitments and/or Term Loans or for an assignment SECTION 4 to the same extent as if it were a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred Lender and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such had acquired its interest by assignment;.
(Bd) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of Any Lender may at any time pledge or assign a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of security interest in all or any portion of a Term Loan its Rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment secure obligations to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), Federal Reserve Bank; provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial pledge or assignment shall be made as an assignment release such Lender from any of a proportionate part of all the assigning Lender’s rights and its obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments hereunder or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless substitute any such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the pledgee or assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive for such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledparty hereto.
Appears in 1 contract
Sources: Term Loan and Security Agreement (American Real Estate Partners L P)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no Each Lender may at any time assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including delegate all or a portion of its Commitments obligations under this Agreement and the Loans at other Loan Documents (including all its rights and obligations with respect to the time owing Loans) to it) with the prior written consent one or more Persons (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a"Transferee"), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(Bi) the Administrative Agent, provided that so long as no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender Default or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
continuing and subject to the provisions of Section 13.2(h) hereof, such Transferee shall be a Qualified Lender and (ii) such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its Permitted Discretion. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Lender Addition Agreement, (A) the Transferee thereunder shall be a party hereto and, to the extent provided in such Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (B) each partial assignment the assigning Lender shall be made relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as an assignment the case may be, to the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and, in the case of a proportionate part Lender Addition Agreement covering all or the remaining portion of all the an assigning Lender’s 's rights and obligations under this Agreement, provided that this clause such assigning Lender shall not be construed cease to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, party hereto but shall deliver nevertheless continue to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings benefits of Sections 13.4 and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelled13.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, and Security Agreement (Advanced Nutraceuticals Inc/Tx)
Successors and Assigns; Assignments and Participations. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)hereby, except that (i) no the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender the Agent (and any attempted assignment or transfer by such the Borrower without such consent shall be null and void) and (ii) no Lender the Lenders may not assign or otherwise transfer its rights or obligations hereunder except to an assignee (“Assignee”). Subject to acceptance and recording thereof pursuant to this Section 9.6, from and after the effective date specified in accordance with this Section. Nothing in this Agreement, expressed or implied, each Assignment and Assumption the Assignee thereunder shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) a party hereto and, to the extent expressly contemplated herebyof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by this Section 9.6, the Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(ib) Subject to Any Lender may, without the conditions set forth in clause (b)(ii) belowconsent of the Borrower or the Agent, any Lender may assign sell participations to one or more assignees (each, an “Assignee”) entities in all or a portion of its such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (i) with such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the prior written consent other parties hereto for the performance of such obligations and (such consent not to be unreasonably withheld or delayed) of:
(Aiii) the Parent Borrower, provided that no consent of the Parent Borrower Agent and the other Lenders shall be required continue to deal solely and directly with such Lender in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided . Any agreement pursuant to which a Lender sells such a participation shall provide that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge retain the sole right to enforce this Agreement and agree that they are each “insiders” under Section 101(31) to approve any amendment, modification or waiver of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms provision of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated LendersAgreement; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lendersuch agreement may provide that such Lender will not, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, without the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% consent of the aggregate unpaid principal amount of the Term Loans then outstandingloan participant, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned agree to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, modification or waiver or modification that (x) requires the consent of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans directly affected thereby pursuant to Section 2.08(j9.1 and (y) and Term Loans acquired by Holdings or its Subsidiaries under directly affects such Section shall be immediately cancelledloan participant.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower the Company may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties or obligations hereunder under any Loan Papers without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.Obligation. LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT 58
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) ofother Loan Papers; provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, another Lender or to an Affiliate of a Lender Lender, or an assignment of the entire remaining amount all of the assigning a Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment 's Rights and obligations under this Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million unless each of the Parent Borrower and the Administrative Agent otherwise consent (other Loan Papers, any such consent not to be unreasonably withheld or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as in an amount at least equal to $5,000,000, and, after such assignment, no Lender shall have a Committed Sum of less than $5,000,000 (in each case unless otherwise agreed by the Company and the Administrative Agent);
(iii) each such assignment by a Lender shall be of a proportionate part constant, and not varying, percentage of all the assigning Lender’s rights of its Rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;; and
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement, together with a processing and recordation fee of $3,500 payable by 3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the Assignee unless such parties otherwise agree;
(D) the assignee, if it assignee thereunder shall not be a Lenderparty hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under the Loan Papers. If the assignee is not incorporated under the Laws of the United States of America or a state thereof, it shall deliver to the Company and the Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 3.6.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and their respective Committed Sums, and principal amount of the Drawings, if any, owing to each 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 Company, the Administrative Agent, Issuing Lender, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Papers. The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this Section, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by the Administrative Agent to reflect the name, address, and respective Committed Sums of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, and payment of the processing fee, the Administrative Questionnaire Agent shall, if such Assignment and Acceptance has been completed and is in which substantially the assignee designates form of EXHIBIT B hereto: (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial lending business and in accordance with applicable Law, at any time sell to one or more credit contacts Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to whom a Participant, (i) such LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT Lender shall remain a "Lender" under this Agreement and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Obligation for all syndicate-level information purposes under this Agreement, (which may contain material non-public information about v) the Parent Borrower Company and its affiliates the Administrative Agent shall continue to deal solely and its Related Parties directly with such Lender in connection with such Lender's Rights and obligations under the Loan Papers, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold the Company and the Administrative Agent and their respective securities) will be made available successors, permitted assigns, officers, directors, employees, agents, and who may receive such information in accordance with representatives harmless against the Assignee’s compliance procedures and applicable lawssame. Participants shall have no Rights under the Loan Papers, including Federal and state securities laws;
(E) in case of an assignment other than certain voting Rights as provided below. Subject to a Sponsor Affiliated Lenderthe following, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31be entitled to obtain (on behalf of its Participants) the benefits of SECTION 3.4 with respect to all participations in its part of the Bankruptcy Code and, Obligation outstanding from time to time so long as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, Company shall not be counted if voted obligated to pay any amount in excess of the event amount that any proceeding thereunder shall would be instituted by or against the Parent Borrower or any other Loan Party due to such Lender under any applicable Debtor Relief Laws, and such Sponsor Affiliated SECTION 3.4 calculated as though no participations have been made. No Lender shall further acknowledge and agree that sell any participating interest under which the Participant shall have any Rights to the extent it votes in contravention approve any amendment, modification, or waiver of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternatively, to the extent that the foregoing non-voting designation is deemed unenforceable for any reason, each Sponsor Affiliated Lender shall vote in such proceedings in the manner as directed by the Majority LendersLoan Paper, except to the extent that any plan such Lender has voting rights pursuant to SECTION 11.10; provided that, in those cases where a Participant is entitled to the benefits of reorganization proposes SECTION 3.4 or a Lender grants Rights to treat its Participants to approve amendments to or waivers of the Obligations Loan Papers respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (Eor Participant) shall not apply to Affiliated Debt Funds,
(F) control the vote for all of such Lender's portion of the Obligation. Except in the case of an assignment the sale of a participating interest to a Sponsor Affiliated another Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders relevant participation agreement shall not exceed 20% permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the aggregate unpaid principal amount Obligation, unless the consent of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated transferring Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and which consent will not be permitted unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge all or any portion of its loans and advances hereunder to attend or participate in 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.
(or receive g) Any Lender may furnish any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted information concerning the Credit Parties in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on possession of such matter; provided that an Affiliated Debt Fund will not be subject Lender from time to such voting limitations time to Eligible Assignees and will be entitled Participants (including prospective Eligible Assignees and Participants), subject, however, to vote as if it was a Lender; and
(G) notwithstanding anything herein to the contrary, Holdings and its Subsidiaries may not be assignees of any Loans or Commitments other than Term Loans pursuant to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such Section shall be immediately cancelledSECTION 11.16 hereof.
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Sources: Letter of Credit and Reimbursement Agreement (Flowserve Corp)
Successors and Assigns; Assignments and Participations. (a) The provisions of this This Agreement shall be binding upon upon, and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit)assigns, except that (i) no Borrower may not, directly or indirectly, assign or otherwise transfer transfer, or attempt to assign or transfer, any of its rights Rights, duties, or obligations hereunder under any Loan Documents without the prior express written consent of each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) all Lenders, and (ii) except as permitted under this Section, no Lender may assign transfer, pledge, assign, sell any participation in, or otherwise transfer encumber its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate portion of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this AgreementObligation.
(ib) Subject to the conditions set forth in clause (b)(ii) below, any Each Lender may assign to one or more assignees (each, an “Assignee”) Eligible Assignees all or a portion of its rights Rights and obligations under this Agreement the Loan Documents (including including, without limitation, all or a portion of its Commitments Borrowings and its Notes -- to the Loans at the time owing extent any Principal Debt owed to it) with the prior written consent (such consent not to be unreasonably withheld assigning Lender is evidenced by a Note or delayed) ofNotes); provided, however, that:
(Ai) the Parent Borrower, provided that no consent of the Parent Borrower each such assignment shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any other Person; provided, further, that if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignmentEligible Assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, another Lender or an Affiliate of a Lender Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the entire remaining amount of Loan Documents, any such partial assignment under the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) Revolver Facility shall not be less than $5.0 million or, in the case of Term Loans, $1.0 million 5,000,000 (unless each of the Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld and, unless a Default or delayed), provided that no such consent of the Parent Borrower shall be required if an Event of Potential Default has occurred and is continuing;, Borrower consents thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement), provided that, no partial assignment (including any assignment among Lenders) may result in any Lender holding less than $5,000,000.
(Biii) each partial such assignment by a Lender shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights 's Rights and obligations under this Agreement, provided that this clause shall not be construed Agreement and the Notes (to prohibit the assignment of extent any Principal Debt owed to such assigning Lender is evidenced by a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments Note or LoansNotes);
(Civ) the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreementand Acceptance Agreement in the form of EXHIBIT E hereto ("ASSIGNMENT AND ACCEPTANCE"), together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500 payable by 3,500, including, without limitation, any assignment between Lenders; and
(v) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Assignee Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive has relinquished such information title in accordance with SECTION 12.1 (with respect to Administrative Agent) or SECTION 12.10 (with respect to the Assignee’s compliance procedures other Agents). Upon execution, delivery, and applicable laws, including Federal acceptance of such Assignment and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as suchAcceptance, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any proceeding assignee thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to being designated as having voted “not in good faith” under subsections (c) and (e) of Section 1126 of the Bankruptcy Code , or, alternativelya party hereto and, to the extent that of such assignment, have the foregoing non-voting designation obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 13.3 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 Lenders and the Commitment Percentage of, Committed Sum of, and Principal Debt owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower, or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 13.13, SCHEDULE 2.1 shall automatically be deemed unenforceable amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sum of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any reasonwithholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Sponsor Affiliated Lender shall vote be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such proceedings in Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the manner as directed by the Majority LendersParticipant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent that such amendment, modification, or waiver extends the due date for payment of any plan amount in respect of reorganization proposes principal (other than mandatory prepayments, if any), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to treat the Obligations Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties (except such releases of Guaranties as are contemplated in SECTION 6.2); provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Sponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (Eor Participant) shall not apply to Affiliated Debt Funds,
(F) control the vote for all of such Lender's portion of the Obligation. Except in the case of an assignment the sale of a participating interest to a Sponsor Affiliated another Lender, (1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders relevant participation agreement shall not exceed 20% permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the aggregate unpaid principal amount Obligation, unless the consent of the Term Loans then outstanding, (2) no Revolving Credit Loans or Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated transferring Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and which consent will not be permitted unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to attend or participate in (or receive the extent any notice of) Lender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Principal Debt Fund will not be subject owed to such voting limitations assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and will be entitled to vote as if it was any Operating Circular issued by such Federal Reserve Bank or any Lender which is a Lender; and
fund may pledge all or any portion of its Borrowings and its Notes (G) notwithstanding anything herein to the contrary, Holdings and extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its Subsidiaries may not be assignees trustee in support of any Loans or Commitments other than Term Loans pursuant its obligations to Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under trustee. No such Section assignment shall be immediately cancelledrelease the assigning Lender from its obligations hereunder.
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